# Opposition Brief — Hobson v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0679%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1989 - **Citation:** 492 U.S. 913 ## Text — 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0679%3A2. Public record. Not legal advice.