Opposition Brief — Hobson v. United States

—

whe | Supreme Court, US,

| FILED

No. 87-1051 FEB 39. 1988

—eOEb. SPANIOL,

CLERK

In the Supreme Court of the Unite

OCTOBER TERM, 1987

RUSSELL HOBSON, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

JOEL M. GERSHOWITZ

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

wy see

cas UA ROIRES HO:

QUESTION PRESENTED

Whether there has been an intervening change of law con-

cerning the predicate act requirement of the Racketeer In-

fluenced and Corrupt Organizations Act (RICO), 18 U.S.C.

1962, that entitles petitioner to challenge under 28 U.S.C.

2255 the sufficiency of the evidence supporting his RICO con-

viction even though the same claim was raised and rejected

on direct appeal.

(I)

TABLE OF CONTENTS

Page

a ned ke essa cn es seteweencs l

ee aes ch nb avd cance cescesevens l

ek uate seas ansseectbeussis l

a NS o

ne cag d wats ade sit cavrssvens 8

TABLE OF AUTHORITIES

Cases:

Davis v. United States, 417 U.S. 333 (1974) ..... 5

Egger v. United States, 509 F.2d 745 (9th Cir.),

cert. denied, 423 U.S. 842 (1975) ............. 4

Giacalone v. United States, 739 F.2d 40

ee cya psasdessiecescsses 4

Jackson v. United States, 495 F.2d 349

a | rae See arang wis 6-40 4

Kaufman v. United States, 394 U.S. 217

Gk s sce peeks seeess ess 4

~McGuinn v. United States, 239 F.2d 449 (D.C.

Cir. 1956), cert. denied, 353 U.S. 942

a 4

Ordonez v. United States, 588 F.2d 448 (Sth Cir.),

cert. denied, 441 U.S. 963 (1979) ............. 4

Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479

Gk aa ke wks AoW As wen eees 4,5, 6

(IIT)

IV

Page

Cases—Continued:

Stephan v. United States, 496 F.2d 527 (6th Cir.

1974), cert. denied, 423 U.S. 861 (1975) ..... 4

United States v. Carter, 721 F.2d 1514 (11th Cir.),

cert. denied, 469 U.S. 819 (1984) ........... 7

United States v. Fernandez, 797 F.2d 943 (11th

Cir. 1986), cert. denied, No. 86-1577

Ce ee I. boas so a ee Ba een aoe 6

United States v. Kragness, 830 F.2d 842

Gs ED oases 25% abso econ eeess 6,7

United States v. Parness, 503 F.2d 430 (2d Cir.

1974), cert. denied, 419 U.S. 1105

CRUE con ck savene sts cue wes ans ae hcet 6

United States v. Phillips, 664 F.2d 971 (Sth Cir.

1981), cert. denied, 457 U.S. 1136

CEE oS ce itn sy ca e SER ae ae ke oes 6

United States v. Rowan, 663 F.2d 1034

i > RE Re Peirce ein titan ere 4

United States v. Weatherspoon, 581 F.2d 595

Ce ee: (ON ie sca Pe hy ace ie corn nee 6

Statutes:

Bien, BNI cog soos ceueeeaed ccna cue ee

Sey Se IEE, io ov bss sande 6 aéuawanauwa l

PF Ghee SOD 665 hess bse eden e ee sete ees 1-2

V

Page

Statutes—Continued:

ee eo Sock ete nei ec eee reese 5

y EB Fe |) EIN rei he toy ber 2

pig ST ck | EA aR hPa Pon ha 2

pi Bk Sh aR ere orer mre reir peg ah 2

pM EF es RR RPE res Cee Sahin eA See Say 2

Ge See NED cS 65 cd avd Se eek eee 5 ae Ry

Miscellaneous:

S. Rep. 91-617, 91st Cong., Ist Sess.

COD vp dda db ovnaeengcasene deeb ne a eeeeeaee 5

Iu the Supreme Court of the United States

OCTOBER TERM, 1987

No. 87-105]

RUSSELL HOBSON, PETITIONER

»

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-6a) is

reported at 825 F.2d 364.

JURISDICTION

The judgment of the court of appeals was entered on August

25, 1987. A petition for rehearing was denied on September

23, 1987 (Pet. App. 7a-9a). The petition for a writ of certiorari

was filed on December 22, 1987. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court for

the Northern District of Florida, petitioner was convicted of

participating in the affairs of an enterprise through a pattern

of racketeering activity, in violation of 18 U.S.C. 1962(c)

(RICO); conspiring to commit that offense, in violation of 18

(1)

2

U.S.C. 1962(d) (RICO conspiracy); importing marijuana, in

violation of 21 U.S.C. 952(a); conspiring to commit that

offense, in violation of 21 U.S.C. 963; possessing mari-

juana with intent to distribute it, in violation of 21 U.S.C.

841(a)(1); and conspiring to commit that offense, in viola-

tion of 21 U.S.C. 846. He was sentenced to a total of 35 years’

imprisonment and a $110,000 fine.' The court of appeals af-

firmed, United States v. Bascaro, 742 F.2d 1335 (11th Cir.

1984), and this Court denied certiorari, 472 U.S. 1017 (1985).

Thereafter, petitioner sought collateral relief under 28 U.S.C.

2255. The district court denied the motion, and the court of

appeals affirmed. Pet. App. la-6a.

1. The evidence at trial is summarized in the opinion of

the court of appeals on direct appeal (742 F.2d at 1342,

1358-1359). It established the existence of a ring headed by

co-defendants Antonio Bascaro and Manuel Villanueva that

engaged in numerous drug smuggling ventures from late 1977

to early 1981. Petitioner was a ‘‘preferred customer[]’’ of

the enterprise; he and co-defendant Michael Waldrop pur-

chased marijuana from the organization on 25 to 30 separate

occasions (id. at 1358).

In January 1979, co-conspirator Clyde Cobb decided to at-

tempt to smuggle marijuana by airplane (38 R. 186). In mid-

~January, pursuant to Cobb's plan, James McDonnell flew a

DC-3 airplane to Colombia, took on a cargo of marijuana,

and flew back to Fort Lauderdale. The plane and its cargo

were seized by federal and local law enforcement agents at

the Fort Lauderdale airport. 32 R. 127, 151-154.

' The court imposed the sentences as follows: consecutive terms of

7-1/2 years’ imprisonment on the RICO and RICO conspiracy counts;

consecutive terms of five years’ imprisonment on each of the four con-

trolled substances counts; and cumulative fines of $25,000 on each of

tae RICO counts and $15,000 on each of the controlled substances counts.

Two weeks later, McDonnell agreed to make a second at-

tempt to smuggle marijuana by aircraft (32 R. 156-157). Co-

conspirator Patrick Waldrop had made a down payment of

$1,500,000 to Cobb’s brother-in-law, and Waldrop and peti-

tioner consequently expected to receive a substantial part of

the planeload of marijuana (38 R. 187; 40 R. 55). Waldrop

and petitioner pressured Cobb to produce the marijuana or

return the $1,500,000 (38 R. 220-223). On February 13,

1979, McDonnell and two others flew to Colombia in a Lock-

heed Constellation and obtained 25,795 pounds of mari-

juana (32 R. 140, 160-161). Trucks furnished by Waldrop

and petitioner were readied to meet the airplane at a clandes-

tine landing site to take possession of most of the Constella-

tion’s cargo (39 R. 10-12). On the return flight, however,

fog and engine problems prevented the Constellation from

landing at the clandestine site (32 R. 163-166). McDonnell

finally landed at an airport in Panama City, Florida, in the

early morning hours on February 14, 1979 (32 R. 166). Fed-

eral agents arrested the crewmembers and seized the mariju-

ana (32 R. 132-140, 167; 38 R. 187-188). Several hours after

the Constellation was supposed to have arrived at the pre-

arranged site, petitioner telephoned Cobb to ask what had hap-

pened (39 R. 18).

2. The predicate acts of racketeering underlying petition-

er's RICO convictions were the importation of the mari-

juana aboard the Constellation and the possession of that mari-

juana with intent to distribute it. On direct appeal, petitioner

contended that those two offenses did not qualify as a **pat-

tern of racketeering activity’’ within the meaning of the RICO

statute, 18 U.S.C. 1961(5), because they arose out of a sin-

gle criminal episode. The court of appeals rejected that ar-

gument, concluding that *‘[pJossessing and importing mari-

juana are two separate crimes and consequently two separate

acts for purposes of the RICO statute.’’ 742 F.2d at

1360-1361. Petitioner sought review of that ruling in a peti-

tion for a writ of certiorari, but this Court denied the peti-

tion. 472 U.S. 1017 (1985).

a a

3. On September 19,4985, petitioner moved in district

court to vacate his sentence under 28 U.S.C. 2255, arguing

once again that the evidence failed to establish that he had

engaged in a “‘pattern of racketeering activity.’’ The district

court denied the motion on the ground that the court of ap-

peals’ earlier rejection of the claim precluded collateral

review. Pet. App. 4a. On appeal, the court of appeals found

“no error in this reasoning’’ (ibid.). The court of appeals

rejected the contention that it should reconsider its previous

ruling in light of a footnote in this Court’s intervening deci-

sion in Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496

n.14(1985). The court of appeals explained (Pet. App. 4a-Sa

n.2) that the pertinent language in Sedima *‘does not neces-

sarily change this circuit’s rule, as applied in [petitioner's]

direct appeal, that two separate crimes clearly constitute two

separate acts for purposes of RICO.”’

ARGUMENT

1. Petitioner contends that he is entitled to relief from his

RICO conviction under 28 U.S.C. 2255. It is well settled,

however, that courts are not required to reconsider claims

of error under Section 2255 that were unsuccessfully assert-

ed on direct appeal. See Kaufman v. United States, 394 U.S.

217, 227 n.8 (1969); Giacalone vy. United States, 739 F.2d

40, 42 (2d Cir. 1984); United States v. Rowan, 663 F.2d

1034, 1035 (11th Cir. 1981); Ordonez v. United States, 588

F.2d 448, 448-449 (Sth Cir.), cert. denied, 441 U.S. 963

(1979); Egger v. United States , 509 F.2d 745, 748 (9th Cir.),

cert. denied, 423 U.S. 842 (1975); Stephan v. United States,

496 F.2d 527, 528-529 (6th Cir. 1974), cert. denied, 423 U.S.

861 (1975); Jackson v. United States, 495 F.2d 349, 351 (8th

Cir. 1974); McGuinn v. United States, 239 F.2d 449, 450-

451 (D.C. Cir. 1956), cert. denied, 353 U.S. 942 (1957).

Petitioner raised on direct appeal precisely the same claim he

raises here, and the court of appeals rejected it. Bascaro, 742

F.2d at 1360-1361.

Petitioner argues that the courts below should have reconsi-__

dered his claim on the merits because of this Court’s interven-

ing decision in Sedima. This Court has held that a defendant

is not precluded from collaterally attacking his conviction on

the basis of a claim that was rejected on direct appeal if there

has been an intervening change in the relevant law. Davis v.

United States, 417 U.S. 333, 341-342 (1974). But that princi-

ple is not applicable in this case, because Sedima dia not change

the law that was applied in Bascaro.

A ‘‘pattern of racketeering activity,’’ as defined in 18 U.S.C.

1961(5), requires proof of at least two acts of racketeering ac-

tivity committed during a single ten-year period. In Sedima,

the Court observed (473 U.S. at 496 n.14) that while two acts

of racketeering are necessary to establish a pattern under RICO,

they ‘‘may not be sufficient.’’ The Court explained that *‘two

isolated acts of racketeering activity do not constitute a pat-

tern’’; rather, a pattern requires ‘* ‘continuity plus relation-

ship’ ’’ (ibid., quoting S. Rep. 91-617, 91st Cong., Ist Sess.

158 (1969) (emphasis in original)). The Court went on to quote

with approval the definition of ‘‘pattern’’ in the Dangerous Spe-

cial Offender statute, 18 U.S.C. 3575(e), as ‘‘ ‘embrac[ing]

criminal acts that have the same or similar purposes, results,

participants, victims or methods of commission, or otherwise

are interrelated by distinguishing characteristics and are not iso-

lated events’ ’’ (473 U.S. at 496 n.14 (citation omitted)).

The footnote in Sedima on which petitioner relies stands for

the proposition that isolated, unrelated acts may not satisfy the

requirement of a ‘‘pattern’’ under RICO. But petitioner’s acts

of racketeering were anything but isolated. Rather, his impor-

tation and possession offenses ‘‘were closely related to each

other and to the ongoing objective of narcotics smuggling.’’

United States v. Fernandez, 797 F.2d 943, 951 n.5 (11th Cir.

1986), cert. denied, No. 86-1577 (June 22, 1987). The issue

in this case is not whether petitioner’s offenses were too iso-

lated or sporadic to qualify as a “‘pattern’’; it is whether his

offenses failed to meet the ‘‘pattern’’ requirement because they

arose out of the same criminal episode and thus were too closely

related. The Sedima footnote simply did not address that is-

sue. The court of appeals was therefore correct in concluding

(Pet. App. 4a-5a n.2) that Sedima did not change the relevant

law that was applied on direct appeal in Bascaro.

2. In United States v. Kragness, 830 F.2d 842, 860-861 (8th

Cir. 1987), the court held that the offenses of importing mari-

juana and possessing marijuana with intent to distribute it do

not constitute a ‘‘pattern of racketeering’’ where they arise out

of the single act of shipping marijuana into the United States.

Even if the position taken by the court in Kragness is legally

correct when the importation and possession offenses arise from

a single criminal act, the analysis employed by the Eighth Cir-

cuit may require a different result in a case such as this one,

where the defendant engages in a series of acts over a period

of time that relate to the two predicate offenses.”

2 The RICO statute does not prohibit reliance on two or more acts of

racketeering that arise from the same criminal episode. See, e.g., United

States v. Phillips, 664 F.2d 971, 1039 (Sth Cir. 1981), cert. denied, 457

U.S. 1136 (1982); United States v. Weatherspoon, 581 F.2d 595, 601-602

(7th Cir. 1978); United States v. Parness, 503 F.2d 430, 441-442 (2d Cir.

1974), cert. denied, 419 U.S. 1105 (1975). Nonetheless, the Department

of Justice has established a polic » against charging multiple predicate acts

based on a single episode of criminal conduct. As the Kragness court ob-

served (830 F.2d at 861) using marijuana possession and importation

offenses as separate acts of racketeering activity when they are based on

a single criminal act is contrary to that policy. Using those two charges

as separate predicate acts was contrary to the terms of the authorization

In any event, Kragness was decided after the decision of the

court of appeals in this case, and the Eleventh Circuit there-

fore did not have the opportunity to consider it. Furthermore,

even if Kragness had come first, it would not have constituted

an intervening change in the iaw of the Eleventh Circuit re-

quiring that court to reconside* its initial rejection of petition-

er’s claim. The judgment below—that petitioner’s claim does

not justify relief under Section 2255 on the basis of an inter-

vening change in the law—is therefore correct.?

approving the prosecution in the Kragness case; the treatment of the pos-

session and importation offenses in Kragness as separate predicate acts was

apparently the result of an error in the prosecutor’s interpretation of the

terms under which the prosecution in that case was authorized. We are ad-

vised that the Kragness decision has prompted the Organized Crime and

Racketeering Section of the Department’s Criminal Division, which is

responsible for reviewing and authorizing all RICO prosecutions, to take

steps to make the terms of its approval more explicit with respect to the

Department’s policy against charging as separate racketeering acts multi-

ple offenses that arise out of a single criminal episode. For that reason,

we do not anticipate that the problem presented by the Kragness case—and

in different form by the present case—-will arise with any frequency in the

future.

3 We note that any error in counting the importation offense and the pos-

session offense as separate acts of racketeering would not require reversal

of petitioner's RICO conspiracy conviction (or any of his convictions on

the controlled substances counts). To prove a RICO conspiracy, the govern-

ment must show only that the defendant agreed to commit two predicate

acts of racketeering in furtherance of the enterprise; it need not show actu-

al commission of those offenses. See, e.g., United States v. Carter, 721

F.2d 1514, 1529-1531 (11th Cir.), cert. denied, 469 U.S. 819 (1984). Even

if the evidence failed to show that petitioner actualiy engaged in a *‘pattern

of racketeering,’’ it clearly established that he agreed to do so—that is, that

he agreed both to import marijuana and to possess marijuana with an intent

to distribute it as temporally distinct acts.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

JOEL M. GERSHOWITZ

Attorney

FEBRUARY 1988