Amicus Curiae Brief — Hobson v. United States

NO. 84-1 ag?

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

RUSSELL HOBSON, III,

Petitioner

Vv

UNITED STATES OF AMERICA,

Respondent

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

BRIEF OF THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AND THE

NATIONAL LEGAL AID AND DEFENDER

ASSOCIATION AS AMICUS CURIAE IN

SUPPORT OF THE PETITION

FOR CERTIORARI

GERALD H. GOLDSTEIN, Eso. RICHARD J. WILSON, Esq.

Jor i A. CONVERY, Esq. NATIONAL LEGAL AID

GOLDSTEIN, GOLDSTEIN AND DEFENDER

& HILLEY ASSOCIATION

2900 Tower Life Building 1625 K Street, N.W.

San Antonio, Texas 78205 8th Floor

(National Association of Washington D.C. 20006

Criminal Defense Lawyers) (202) 452-0620

(512) 226-1463

|

Alpha Law Brief Co., Inc—5606 Parkersburg—Houston, Texas 77036—223-3003

I

QUESTIONS PRESENTED

1. DOES THE GOVERNMENT HAVE AN OB-

LIGATION UNDER THE DUE PROCESS CLAUSE

OF THE FIFTH AMENDMENT AND UNDER THE

FEDERAL RULES OF APPELLATE PROCEDURE

TO CORRECT SERIOUS MISREPRENTATIONS OF

FACT THAT IT MAKES TO A COURT OF APPEALS

WITH RESPECT TO THE CONTENTS OF THE

RECORD IN A MULTIDEFENDANT, COMPLICATED

CASE, ESPECIALLY WHEN THE MISREPRESEN-

TATIONS ARE CALLED TO ITS ATTENTION WITH

SPECIFICITY AND THE GOVERNMENT HAS BOTH

THE TIME AND THE OPPORTUNITY TO MAKE

A CORRECTION?

2. MAY THE GOVERNMENT USE MARIJUANA

OFFENSES AS PREDICATE ACTS TO ESTABLISH

VIOLATIONS OF THE FEDERAL RACKETEERING

STATUTE (RICO)?

3. WHERE A DEFENDANT HAS COMMITTED

ONLY ONE ACT, MAY THE GOVERNMENT PROVE

A PATTERN OF RACKETEERING ACTIVITY, AS

REQUIRED TO CONVICT A DEFENDANT OF

RACKETEERING, BY CHARGING THE SINGLE

ACT IN TWO SEPARATE COUNTS AND CLAIMING

THAT THE SINGLE ACT IS A PATTERN BECAUSE

IT CONSTITUTES TWO OFFENSES?

ll

TABLE OF CONTENTS

QUESTIONS PRESENTED ........-..-eeeeeeeeeeees

INTEREST OF THE AMICI CURIAE ..........+++::

QUESTIONS PRESENTED ........-++-eeeeeeeeeeeees

a

DOES THE GOVERNMENT HAVE AN OBLIGA-

TION UNDER THE DUE PROCESS CLAUSE OF

THE FIFTH AMENDMENT AND UNDER THE

FEDERAL RULES OF APPELLATE PROCEDURE

TO CORRECT SERIOUS MISREPRESENTATIONS

OF FACT THAT IT MAKES TO A COURT OF

APPEALS WITH RESPECT TO THE CONTENTS

OF THE RECORD IN A MULTIDEFENDANT,

COMPLICATED CASE, ESPECIALLY WHEN THE

MISREPRESENTATIONS ARE CALLED TO ITS

ATTENTION WITH SPECIFICITY AND THE GOV-

ERNMENT HAS BOTH THE TIME AND THE

OPPORTUNITY TO MAKE A CORRECTION? ..

MAY THE GOVERNMENT USE MARIJUANA

OFFENSES AS PREDICATE ACTS TO ESTAB-

LISH VIOLATIONS OF THE FEDERAL RACKE-

TEERING STATUTE (RICO)? ............-.-.

WHERE A DEFENDANT HAS COMMITTED

ONLY ONE ACT, MAY THE GOVERNMENT

PROVE A PATTERN OF RACKETEERING AC-

TIVITY, AS REQUIRED TO CONVICT A DE-

FENDANT OF RACKETEERING, BY CHARGING

THE SINGLE ACT IN TWO SEPARATE COUNTS

AND CLAIMING THAT THE SINGLE ACT IS

A PATTERN BECAUSE IT CONSTITUTES TWO

GRPRINGOT ccvctccvsvcesccrestscdeteereeress

CONNCEATINOUE ov vnc cececsvecsecdenncssaccaes4savees

CERTIFICATE OF SERVICE ...........cecccceeeess

APPENDIX A—Consent to File Letter from Rex E. Lee,

Solicitor General of the United States ................

APPENDIX B—Consent to File Letter from James M.

Shellow, Counsel for Petitioner ..............+---0+.

13

18

21

22

la

2a

lil

TABLE OF AUTHORITIES

CONSTITUTIONAL PROVISIONS Page

US. CONSTITUTION, AMEND. $ 2... cccccccccecces 3

CASES

Garcia v. United States, 105 S.Ct. 479 (1984) .......... 15,20

Gustafson v. United States, 734 F.2d 1447 (11th Cir.)

i rr i i edb ee bales cew sens eeese > §, 13, 15, 17

Lewis v. United States, 445 U.S. 55, 60 (1980) ........ 13

United States v. Agurs, 427 U.S. 97 (1976) ............ 12

United States v. Giordano, 416 U.S. 505, 517-18 n. 7 (1984) 14

United States v. Lee Stoller Enterprises, Inc., 652 F.2d 1313,

1319 n. 10 (7th Cir.) (en banc), cert. denied, 454 US.

On 14

United States v. Phillips, 664 F.2d 971 (Sth Cir. 1981)

(Unit B), cert. denied, 457 U.S. 1136 (1982) ....... 5,17

United States v. Turkette,.452 U.S. 576 (1981) ..... 13, 14, 19, 20

STATUTES

We rs OE UOEED CUNY. C. e scccccccccvecees 14

Se ee DMO on cca neocccecctereees 19

Sie ee NE TID oi viecicceccesacvvcceceescs 18

Oe oe ian os Cu geceudevivchecesowe 15

RULES OF THE COURT

Federal Rules of Criminal Procedure 28(a)(3) ......... 12

MISCELLANEOUS

Materials on RICO: Criminal Overview, 1 Techniques in the

Investigation and Prosecution of Organized Crime 24

(Cornell Institute on Organized Crime, Blakey Ed. 1980) 14

U.S. Attorney’s Manual, Title 9, Criminal Division

Nee eee ewecen 20

NO. 84-1148

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

RUSSELL HOBSON, III,

Petitioner

V.

UNITED STATES OF AMERICA,

Respondent

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

BRIEF OF THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AND THE

NATIONAL LEGAL AID AND DEFENDER

ASSOCIATION AS AMICUS CURIAE IN

SUPPORT OF THE PETITION

1. FOR CERTIORARI

This brief is filed pursuant to Rule 36.1 of the Rules

of this Court. Consent to file has been granted by the

Honorable Rex E. Lee, Solicitor General of the United

States, and by James M. Shellow, Esq., counsel for the

Petitioner. Letters of consent of both parties accompany

this filing.

2

INTEREST OF THE AMICI CURIAE

The two organizations submitting this brief as amici

curiae, the National Association of Criminal Defense

Lawyers (NACDL) and the National Legal Aid and

Defender Association (NLADA), represent lawyers,

judges and other interested in our criminal justice system.

The NACDL is a National non-profit organization based

in Washington, D.C., with a membership of more than

4000 criminal defense lawyers, law professors and judges.

Among the NACDL’s stated objectives are the promotion

and proper administration of criminal justice. The

NLADA is a non-profit organization of public defender

officers, legal services agencies and 2000 individual mem-

bers, most of whom are engaged in private practice.

Since 1911, the primary purpose of the NLADA has

been to expand and improve the quality of legal services

for the nation’s poor.

Amici respectfully urge this Court to grant the petition

for certiorari because it raises issues that are of general

concern to lawyers and judges dealing with criminal

cases in federal courts throughout the nation. This brief

is written in support of the petition by Russell Hobson

(petitioner) for consideration of his issues by this Court.

With one exception, amici express no view on the merits

of any question raised by petitioner; at this time their

intention is to support his assertion that the case presents

important questions of federal law deserving attention by

the nation’s High Court. The exception is that amici do

support petitioner’s argument that counsel have a duty

of candor to appellate courts that requires accurate state-

ments of a trial record, corrections of misstatements in

appellate briefs, a response to specific allegations of

factual errors in appellate briefs, and an attempt to

correct misstatements of the record in appellate opinions

that result from a misconception of the trial record.

3

QUESTIONS PRESENTED

1, DOES THE GOVERNMENT HAVE AN OB-

LIGATION UNDER THE DUE PROCESS CLAUSE

OF THE FIFTH AMENDMENT AND UNDER THE

FEDERAL RULES OF APPELLATE PROCEDURE

TO CORRECT SERIOUS MISREPRENTATIONS OF

FACT THAT IT MAKES TO A COURT OF APPEALS

WITH RESPECT TO THE CONTENTS OF THE

RECORD IN A MULTIDEFENDANT, COMPLICATED

CASE, ESPECIALLY WHEN THE MISREPRESEN-

TATIONS ARE CALLED TO ITS ATTENTION WITH

SPECIFICITY AND THE GOVERNMENT HAS BOTH

THE TIME AND THE OPPORTUNITY TO MAKE

A CORRECTION?

This case is typical of many federal criminal cases in

the 1980’s, It began when the government filed a 59 page

indictment charging 12 individuals in 30 counts with a

variety of offenses. The charges included racketeering,

racketeering conspiracy, various other conspiracies and

substantive violations of federal laws prohibiting impor-

tation and trafficking in controlled substances. The trial

lasted approximately two weeks and produced thirteen

(13) volumes of testimony plus numerous exhibits.

There is no doubt that the government established that

some individuals were involved on a large scale with

importation and distribution of marijuana. There seems

to be no doubt, and we understand that petitioner has

conceded throughout his appeal, that if the evidence is

viewed in the light most favorable to the government

there was evidence presented at trial which, if believed,

would have warranted a jury’s finding that on one, pos-

sibly two occasions, petitioner purchased large quantities

of marijuana. Moreover, there seems to be no doubt, and

4

—

we believe this too is conceded by petitioner, that the

government presented evidence which, if believed, would

have warranted a jury’s finding that on another occasion

petitioner made a downpayment on a marijuana purchase

that was never consummated.

Had the government charged petitioner with simple

possession of marijuana, with attempted possession, or

even with possession with intent to distribute (based on

the quantity of marijuana purchased), it might well have

convicted him and avoided the important questions that

have worked their way to this Court. But the government

chose not to pursue the obvious course with respect to

to petitioner. Instead, it insisted upon charging petitioner

with all of the crimes it attributed to the members of the

group identified as running a fairly continuous marijuana

importation and distribution operation.

Specifically, the government charged that petitioner has

associated himself with a racketeering enterprise, which

the indictment charges was “a group of individuals as-

sociated in fact for the purpose of importing multi-ton

quantities of marihuana into the United States from a

place outside of the United States, possessing multi-ton

quantities of marihuana with intent to distribute and

distributing within the United States, multi-ton quantities

of marihuana,” and that he had carried out the activities

of the entéfprise by making a downpayment on a pur-

chase of marijuana (Count 2); that he conspired to

violate the racketeering statute by agreeing to further

the enterprise (Count 1); that he conspired with the

other defendants to import marijuana (Count 3); that

he imported marijuana by making a downpayment on a

purchase that was never consummated (Count 4); that

he conspired to distribute marijuana by the same conduct

5

that made him guilty of racketeering conspiracy (Count

5); and that he possessed marijuana with intent to dis-

tribute by making a downpayment on a purchase that

was never consummated (Count 10).

Amici have read the pertinent record’ in the case,

the opinion of the court of appeals, and relevant portions

of the government’s brief in the court of appeals. This

has enabled amici to make several observations with

confidence, and these observations explain why amici

believe that the ethical rule that petitioner would have

this Court adopt is sound.

First, there is no doubt that four of petitioner’s con-

victions depended upon proof that he knew that mari-

juana was being imported into the United States. The

proof of racketeering, racketeering conspiracy, conspiracy

to import marijuana, and actual importation all require

some knowledge on petitioner’s part that he was dealing

with imported marijuana. The court of appeals recog-

nized that this argument was before it. .

i. In preparing its amicus filing, amici did examine carefully the

portions of the record in petitioner’s case that were most important

to their decision on whether to support the petition for certiorari.

Amici also examined other relevant items. Among the documents that

amici examined were the following: the indictment in the district

court; petitioner’s opening brief in the court of appeals; the govern-

ment’s brief in the court of appeals; petitioner’s reply brief in the

court of appeals; petitioner’s petition for rehearing and rehearing

en banc in the court of appeals; petitioner’s certiorari petition; the

decision of the court of appeals in United States v. Phillips, discussed

infra; the petition for certiorari in Gustafson v. United States,

No. 84-483, cert. denied, January 21, 1985; the government’s brief

in opposition in Gustafson; Gustafson’s reply to the government’s

opposition; and a letter from petitioner’s counsel to the Solicitor

General, dated February 26, 1985, in which petitioner’s counsel re-

lates a Justice for correction of misstatements in its brief while peti-

tioner’s rehearing application was pending in the court of appeals.

6

Second, petitioner asserted at the trial level and in

the court of appeals that he could not be convicted of

conspiracy to distribute marijuana simply on the basis

of proof that he purchased marijuana from ihe sellers

once or twice. The court of appeals recognized that this

argument was before it.

Third, petitioner asserted that he could not be con-

victed of possession of marijuana on which he had paid

a downpayment because he never possessed it, neither

actually nor constructively. The court of appeals recog-

nized that this argument was before it.

Fourth, the briefs petitioner filed in the court of appeals

—both the opening brief and the reply brief—stated to

the court that there was no evidence to support a finding

that petitioner knew that marijuana was being imported,

that there was no evidence to prove that he was a con-

tinual or perpetual customer of the sellers of the mari-

juana, and that there was no evidence of either actual

or constructive possession of marijuana in connection

with the downpayment. The court of appeals recognized

that this argument was before it.

Amici have analyzed the opinion of the court of appeals

and have found that the court rejected petitioner’s argu-

ments as follows:

a. The court rejected the argument that there was

no evidence that petitioner was aware that marijuana

was being imported because it found that he was

one of the principal organizers of the purchase on

which he made a downpayment, which involved the

use of an airplane, and he was present at the organi-

zation’s stash houses on numerous occasions.

1

7

b. The court accepted the argument that a simple

buyer-seller relationship does not make the buyer a

conspirator with the seller, but it concluded that

petitioner purchased from the selling group «» aum-

erous occasions and was a frequent buyer.

c. The court rejected petitioner’s argument that he

was not in possession of the marijuana on which he

made a downpayment because he was involved in a

previous effort to buy marijuana that had failed and

had pressured the participants in the failed venture

to make another attempt to secure marijuana. Thus,

he was guilty as an aider and abettor.

It seems readily apparent that the court of appeals

relied heavily upon the government’s brief in reaching its

conclusions. The government’s brief is as interesting for

what it does not contain as for what it does. Beginning on

page 5 of the brief, the government presents an extensive

overview of its evidence. That overview continues for 31

pages. Petitioner’s name appears in only three places. On

page 6, the government asserts without a record citation that

petitioner made cash payments for marijuana. On page

10, the government asserts that Hobson took delivery

of marijuana on one occasion. The government offered

a citation to the record. (Although the petitioner points

out in his briefs that the government’s two key witnesses

disagreed over whether Hobson was present on this occa-

sion, the government fails to address petitioner’s asser-

tion or to state whether or not there was a conflict on the

point). On pages 29-30, the government asserts that

petitioner was involved in an unsuccessful attempt to

purchase marijuana and that he pressured the participants

to make another attempt to obtain marijuana. These

efforts are referred to by the government as the airplane

8

ventures. The government offered citations to the record

in this instance also.

Anyone who reads the government’s statement of its

case must be struck by the low visibility of petitioner in

the activities giving rise to the prosecution. The statement

of the case offers virtually no support for most of the

convictions secured by the government, since there is no

description evidence demonstrating knowledge or importa-

tion and no description evidence demonstrating a con-

tinuous buyer-seller relationship. The government spends

100 pages in its brief dealing with many other defend-

ants before returning to petitioner. Then, on page 137,

without any citation to the record, the government as-

serted that “middlemen such as Hobson . . . stood by

awaiting the completion of the counting and weighing,

after which they immediately removed sizable portions

of the massive loads” and implied that petitioner might

have purchased marijuana on 25 or 30 occasions (citing

two pages of the record). Again, without a record citation,

the government asserted at page 137-38, that petitioner

stood by ready to take delivery of all marijuana imported

by other defendants.

The government asserted on page 139 that petitioner

caused the importation of marijuana alleged in count 4.

Although the government offered no citation to the trial

record, it is clear from the indictment that the govern-

ment misstated to the court of appeals the nature of count

4. It did not involve importation of marijuana on a ship

called the Tanila as the government asserted; it involved

a downpayment on a purchase of marijuana that was

never consummated.

9

On pages 139-140, without any citation to the record,

the government implies that petitioner was a continuous

customer and not a purchaser of marijuana on isolated

occasions.

Finally, the government repeats by implication on page

142 an argument made at pages 29-30 that petitioner had

been involved in “airplane ventures” and that petitioner

was in constructive control of the marijuana on which

he had made a downpayment. The government cites a

single page in the record when it refers to petitioner.

After the government filed its brief with the court of

appeals, petitioner filed a reply brief pointing out numer-

ous factual mistakes by the government. Once the court

of appeals rendered its decision, petitioner sought a re-

hearing or rehearing en banc. For the second time, he

pointed to the factual misstatements of the record that

allegedly filled the government’s brief and misled the

court. Specifically, and with supporting citations to the

record, petitioner identified in both the reply brief and the

petition for rehearing the facts which he believed the

government had misstated or the court of appeals had

misunderstood:

a. Petitioner purchased marijuana on only one or,

at most, two occasions from merabers of the enter-

prise, depending on which of the government’s key

witnesses was believed.

b. There was no evidence that petitioner was told

that his downpayment on marijuana would be used

to purchase imported marijuana. In fact, the govern-

ment’s evidence was that petitioner was to bring

trucks to a restaurant where he was to be led to the

marijuana. No witness, document or tape recording

10

suggested even a hint that an airplane would be used

or that the marijuana would be imported.

c. There was no evidence that petitioner was in-

volved in the first airplane venture which the govern-

ment mentioned in its brief. In fact, the government’s

evidence established conclusively that he had no

involvement.

d. There was no evidence that petitioner ever stood

around stash houses awaiting for marijuana to be

counted.

e. There was no evidence that petitioner had agreed

to purchase any marijuana other than on isolated

occasions. Certainly, no one identified him as a

purchaser of last resort.

f. The indictment charging aiding and abetting

possession of marijuana in Count 10 specified that

petitioner was a principal and that he aided and

abetted other named persons. Despite the fact that

the indictment was drafted in other counts to charge

aiding and abetting of persons known and unknown,

the government argued an aiding and abetting theory

not charged in the relevant count. The government

compounded its error by mistakenly referring to one

airplane venture which had no relationship at all to

petitioner.

As noted at the outset, amici cannot identify whether

petitioner’s assertions of misstatements of fact are accu-

rate, either individually or in their totality. Amici can

and do assert, however, firm support for the proposition

that when counsel represents to an appellate court that

an opposing party has misstated the record and supports

this representation with specific examples and record cita-

tions, an appellate court should require the party whose

representations have been attacked to respond with spe-

cific citations to the record.

11

In petitioner’s case, it is almost inconceivable that the

government would not have felt obliged to respond to

petitioner’s reply brief and that it would have ignored

the petition for rehearing. Yet, amici have discovered that

the government ignored both filings (at least officially in

the court of appeals, since not a single piece of paper

was filed in response to either the reply or the petition).

Amici also have learned that counsel for petitioner tele-

phoned the Appellate Section of the Department of Jus-

tice to implore it to check the record following the court

of appeals’ decision and before the petition for rehearing

was filed. The government declined to file anything further

with the court of appeals.

Amici urge this Court to adopt a rule that would re-

quire litigants whose representations of the record are

attacked, and who have failed to support their statements

with complete record citations, to respond to the attacks.

In a case with many defendants and many counts, a

record that runs 13 volumes, and separate issues raised

by the several defendants who are convicted, it simply is

not realistic to assume that each judge on a panel of the

court of appeals (or an en banc court) will read each

page of the record to check for himself or herself whether

unsupported assertions in a brief are fair representations

of the record. The natural tendency is to trust the brief,

especially when it is filed in the name of the United States.

Were the Court to adopt the rule suggested herein and

by petitioner, a court of appeals, by checking the chal-

lenged facts against specific citations to the record, could

assure itself that crucial record references are accurate

and could correct any errors in briefs. Without adoption

of such a rule, the truth is that complex cases may be

12

decided on the basis of incorrect assumptions about the

record.

Amici agree with petitioner that the suggested rule

would further the goal of Federal Rule of Criminal Pro-

cedure 28(a) (3), which requires a party to make “appro-

priate references to the record” in its statement of facts.

certainly, complicated cases may be well suited to briefs

that state facts throughout. But such briefs should not be

immune from the requirements of Rule 28(a) (3).

Amici further agree that the principles of due process

that underlie this Court’s decision in United States v.

Agurs, 427 U.S. 97 (1976), and the earlier cases discussed

therein should apply with the same force on appeal as

at trial. Thus, when the government has been placed on

notice that its statements to a court are false, it has a

duty to take action to assure that it does not mislead the

court. Misstatements of fact do as much damage on ap-

peal as they do at trial.

Although amici cannot take a position at this time on

the merits of the allegations that the government mis-

represented facts and that the court of appeals misappre-

hended the true state of the record, they do believe that

if these allegations prove to be in large part correct, at a

minimum a remand for a new appeal in which the govern-

ment would be required to file a brief that conforms to

Rule 28 and to basic notions of fairness and due process

should be required. Should this Court grant certiorari on

all issues raised by petitioner, a new trial might be re-

quired, depending on the disposition of the other issues

raised in the petition. If a new trial is required, a remand

to the court of appeals would, of course, be unnecessary.

me, a ae men .

13

2. MAY THE GOVERNMENT USE MARIJUANA

OFFENSES AS PREDICATE ACTS TO ESTABLISH

VIOLATIONS OF THE FEDERAL RACKETEERING

STATUTE (RICO)?

Petitioner has presented to this Court substantial argu-

ments in support of the proposition that the Congress en-

acted the federal racketeering statute in 1970 specifically

excluded marijuana offenses from its coverage. NACDL

has made no effort to independently examine the legisla-

tive history, except to compare the history compiled by

petitioner with the history and analysis offered to this

Court by the Solicitor General in Gustafson v. United

States, No. 84-482, cert. denied, January 21, 1985. With-

out taking a position on the merits of the issue raised by

petitioner, Amicus NACDL respectfully requests that this

Court recognize the substantiality of the question pre-

sented and review it according to the same standards of

statutory construction that the Court has employed in the

last several years in analyzing RICO itself and other

statutes.

This Court has said on many occasions that the starting

point for analysis of a statute is its language. See, e.g.,

Lewis v. United States, 445 U.S. 55, 60 (1980). It has

made this point specifically with respect to the racketeer-

ing statute in United States v. Turkette, 452 U.S. 576,

580 (1981). In Turkette, the Court indicated that the

structure of a statute was also important in determining

its purpose. Jd. at 586-87. The Court also declined to

adopt the rule of lenity in deciding Turkette, reasoning

2. The NLADA joins this brief only on the first question. The

NLADA has made no judgment as to the merits of the next two

questions. It has determined only that these questions are outside

the principal areas of interest of the members of the Association.

14

that the rule should operate only to resolve an ambiguity

and there was no ambiguity to resolve in the case. Id. at

587 n. 10.

Applying the Turkette analysis to his claim that the

Statute does not reach marijuana transactions, petitioner

notes that 18 U.S.C. § 1961(1)(D) defines predicate

acts as including offenses “involving . . . the felonious

manufacture, importation, receiving, concealment, buying,

selling, or otherwise dealing in narcotic or other danger-

ous drugs, punishable under any law of the United States.”

(Emphasis added). The word “marijuana” is excluded

even though it is explicitly included in the federal wire-

tap statute sponsored by the same Senator (McCiellan)

who sponsored RICO, authored by the same person who

authored RICO (Robert Blakey),* and drafted by the

same committee (Subcommittee on Criminal Laws and

Procedures of the Senate Judiciary Committee) that pro-

mulgated RICO.

Moreover, Professor Blakey himself appears on peti-

tioner’s brief and repeats his analysis of the legislative

history that he made in 1980 in his published materials

on RICO, Materials on RICO: Criminal Overview, 1

Techniques in the Investigation and Prosecution of Or-

ganized Crime 24 (Cornell Institute on Organized Crime,

Blakey ed. 1980). Blakey refers to the decision to exclude

Marijuana as a conscious one, made despite suggestions

by the Department of Justice that marijuana should be

within the coverage of RICO.

3. Federal courts have recognized Blakey as the principal author

of RICO. See United States v. Lee Stoller Enterprises, Inc., 652 F.2d

1313, 1319 n. 10 (7th Cir.) (en banc), cert. denied, 454 U.S. 1082

(1981). This Court has recognized his role in drafting the wiretap

statute. United States v. Giordano, 416 U.S. 505, 517-18 & n. 7

(1974).

en ne Ce a

15

Petitioner has offered the Court the intertwined legisla-

tive history of RICO and the Comprehensive Drug Abuse

Prevention and Control Act of 1970, 21 U.S.C. §§ 801-

966. His petition cites congressional drafting in 1970 that

covers all controlled substances, including marijuana, as

well as other statutes which provide special treatment for

marijuana. It appears from this history that Congress

knew both how to include marijuana and how to exclude

it from the scope of various statutes.

The “plain language” of RICO, read in light of ihe

structure of the statute and its relationship with the wire-

tap statute and the Comprehensive Drug Abuse Preven-

tion and Control Act, would appear to support peti-

tioner’s conclusion. That conclusion is bolstered by peti-

tioner’s explanation as to why Congress would have

treated marijuana differently from other controlled sub-

stances—to wit, to avoid having small marijuana distri-

butors, who might be misdemeanants under the 1970 drug

reform statute, from being treated as racketeers as a result

of state laws punishing in 1970 even small transfers of

marijuana as gifts as felonies.

The government’s response to a similar petition, which

did not have Professor Blakey of counsel, in the Gustafson

case essentially asks this Court to ignore the choice of

language, the legislative history and the interrelationship

of the wiretap, drug reform and RICO statutes. This,

amicus NACDL respectfully suggests, is precisely what

the Court ought not do.

Earlier this term in Garcia v. United States, 105 S.Ct.

479 (1984), this Court reaffirmed its approach to statu-

tory construction in criminal cases. The Court looked

to the statute as enacted and found that it was plain and

16

unambiguous. It analyzed the structure of the statute

and it looked to the legislative history for congressional

intent. Jd. at 482-84.

Thus far, the language, its background and the intent

of Congress appear to support petitioner’s reading of

the statute. That alone might be sufficient reason for

amicus to support the petition for certiorari in this case.

But there is another reason, more difficult to articulate

ana more important to the long range development of

justice in federal courts. That reason is the importance

of a perception of this Court as evenhanded in its treat-

ment of federal statutes—i.e., favoring neither the gov-

ernment nor the accused, but reading statutes according

to a rule of law.

There is a perception—unfair perhaps, but nonetheless

real—among many lawyers who represent defendants in

criminal cases that the canons of statutory construction

in recent years are used only to produce expansive, rather

than restrictive readings. Simply stated, there is fear that

the Court will avoid cases which might result in narrowing

constructions of a criminal statute in favor of cases in

which the principles articulated in the cases cited above

will favor the government.

This perception and related fear can best be explained

by a single question asked by many who are familiar

with this petition. Before putting the question, amicus

NACDL would make an observation: Amicus believes

that the petitions filed with the Court over the last several

years probably demonstrate more than citations to lower

court decisions that the racketeering statute is used with

increasing frequency every year. It has become a main-

stay in the government’s prosecution of crime. In light

of this observation, amicus NACDL puts the following

————————————————————e—EeEeE—EEEEEEEEE——eEEE

17

question: If the court of appeals had accepted petitioner’s

argument and held that RICO does not cover marijuana

offenses, is there any doubt that this Court would have

granted review at the government's behest?

It would be hyperbole to suggest that the answer that

amicus receive when this question is asked always is

“ves,” but it would be untrue to say that the answer is

often “no”. NACDL believes that the importance of a

question like the one posed by petitioner should be deter-

mined without regard to which party prevailed in the

lower court.

Amicus NACDL wishes to emphasize that they do not

argue that should the Court grant review, it might not

reject the petitioner’s arguments. But, should the Court

do so, amicus believes the analysis almost certainly would

have to be more persuasive than the government’s brief

in Opposition in Gustafson.

The government suggested in Gustafson that there was

no conflict in the circuit as to the reach of RICO. This

is true, but it also is misleading. For all practical pur-

poses only one circuit has yet considered the question

raised by petitioner. The panel that decided petitioner’s

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

Cir. 1981) (Unit B), cert. denied, 457 U.S. 1136 (1982),

and indicated that it was bound by that decision. In fact,

the Phillips court never considered the language of the

statute, the relationship of the statute to the wiretap and

drug reform legislation, or any legislative history. Now

the law of the circuit is, without consideration, that mari-

juana falls within RICO.

Although a denial of certiorari is technically supposed

to have no precedential significance, the fact is that if

18

this Court denies petitioner’s certiorari petition after

having denied Gustafson’s, the government will rely upon

both cases as expressing this Court’s judgment that the

issue is not important enough for it to examine de novo.

The way of appellate courts is to follow this Court’s lead.

They are likely to cite the Eleventh Circuit’s decisions

and this Court’s denial of review and close their eyes

to the issue.

The question presented will never be more clearly

focused. The legislative history, the statutory background

and the language are before this Court. The trial will

only get older with time. The NACDL asks this Court

to examine petitioner’s claim, a defendant’s request that

the statutory canons this Court has used to sustain ex-

pansive readings of criminal statutes be used evenhanded-

ly to narrow a particular statute. Should this Court grant

review and permit amicus NACDL to address the merits

of the claim, amicus would be honored to do so.

3. WHERE A DEFENDANT HAS C*‘MMITTED

ONLY ONE ACT, MAY THE GOVERNMENT PROVE

A PATTERN OF RACKETEERING ACTIVITY, AS

REQUIRED TO CONVICT A DEFENDANT OF

RACKETEERING, BY CHARGING THE SINGLE

ACT IN TWO SEPARATE COUNTS AND CLAIMING

THAT THE SINGLE ACT IS A PATTERN BECAUSE

IT CONSTITUTES TWO OFFENSES?

The analysis of this Court’s treatment of statutory

construction of criminal statutes offered in connection

with the second question is equally applicable to the

third question.

The RICO statute requires a “pattern of racketeering

activity” to sustain a conviction. 18 U.S.C. § 1962(c).

19

A pattern of racketeering activity requires more than one

act. 18 U.S.C. § 1961(5). The trial judge instructed the

jury in petitioner’s case that to convict petitioner, the

jury had to believe that he was guilty on Counts 4 and

10. These counts charged petitioner with importation of

marijuana and possession as a result of his doing a single

act—i.e., making a downpayment on a purchase of mari-

juana.

The government argued, and the court of appeals

agreed, that the downpayment could qualify as two acts

because it could support two substantive convictions.

But, this analysis appears to fly in the face of the statute,

18 U.S.C. § 1961(5), which defines a pattern of racke-

teering activity as requiring

at least two acts of racketeering activity, one of

which occurred after the effective date of this chap-

ter and the last of which occurred within ten years

. after the commission of a prior act.

This suggests that one act will not suffice, especially

in view of the fact that the statute does not require

“two crimes.” Instead two acts must be proved.

This Court stated in United States v. Turkette, 452

U.S. at 583, that the pattern of racketeering envisoned

by the statute is “a series of criminal acts” as defined

by the statute. (Emphasis added). Thus, the construction

by the court of appeals is inconsistent with the face of

the statute and this Court’s dictum concerning its import.

Furthermore, the government’s argument is contrary to

its own guidelines, which were in effect when the indict-

ment was returned in this case. The government adopted

six guidelines on January 16, 1981, which are incor-

‘20

porated in the United States Attorney’s Manual, Title 9,

Criminal Division, as Section 9-110.310 through 9-110.-

360. Guideline IV reads as follows:

No indictment shall be brought charging a violation

of 18 USC 1961(c) based upon a pattern of racke-

teering activity growing out of a single criminal

episode or transaction.

The Commentary to the Guidelines is as follows:

The purpose of these guidelines is to prevent a

pattern of racketeering activity being charged which

lacks the attributes which Congress had in mind

but which is literally within the statute.

In Garcia v. United States, 105 S.Ct. at 485 n. 4,

this Court paid attention to the way in which government

prosecutors treated a criminal statute. Petitioner does not

ask the Court to hold that the guidelines are binding law,

but merely to recognize that they were adopted at a time

when the government was beginning to make substantial

use of the RICO statutes and deserve to be given some

weight.

It appears that the language of the statute, the language

of this Court in Turkette, and the language of the De-

partment of Justice’s guideline all suggest that one act

is not enough to make out a pattern. Amicus believes

that the issue raised by petitioner warrants plenary con-

sideration by .his Court for many of the same reasons

that the second question does. Once more, amicus NACDL

would be honored, if review is granted, to submit its

views on the merits if the Court wishes it to do so.

CONCLUSION

For the reasons stated in this brief, amici respectfully

urge this Court to grant petitioner’s request for a hearing

in the Supreme Court of the United States.

GERALD H. GOLDSTEIN, Esa.

JoHN A. CONVERY, Esa.

GOLDSTEIN, GOLDSTEIN

& HILLEY

2900 Tower Life Building

San Antonio, Texas 78205

(National Association of

Criminal Defense Lawyers)

(512) 226-1463

By:

Respectfully submitted,

RICHARD J. WILSON, Esa.

NATIONAL LEGAL AID

AND DEFENDER

ASSOCIATION

1625 K Street, N.W.

8th Floor

Washington D.C. 20006

(202) 452-0620

GERALD H. GOLDSTEIN

State Bar No. 08101000

JoHN A. CONVERY

State Bar No. 047151000

22

CERTIFICATE OF SERVICE

I hereby certify that a copy of the above and foregoing

Brief of Amicus Curiae, National Association of Criminal

Defense Lawyers and National Legal Aid and Defender ~

Association has been mailed to United States Solicitor

General, Rex E. Lee, Esq., Department of Justice, Room

5614, Washington, D.C. 20530 and Mr. Mervyn Ham-

burg, Esq., Attorney, Appellate Section Criminal Division,

Department of Justice, P. O. Box 899, Ben Franklin

Station, Washington, D. C., counsel for respondent, and

Mr. James M. Shellow, Esq., 222 East Mason Street,

Milwaukee, Wisconsin 53202, on this the day of

March, 1985.

GERALD H. GOLDSTEIN

la

APPENDIX A

U.S. DEPARTMENT OF JUSTICE

Office of the Solicitor General

Washington, D.C. 20530

February 14, 1985

Gerald H. Goldstein, Esquire

Goldstein, Goldstein and Hilley

29th Floor Tower Life Building

San Antonio, Texas 78205

Re: Russell Hobson, III v. United States

No. 84-1148

Dear Mr. Goldstein:

In response to your letter of February 11, 1985, I

hereby consent to the filing of a brief amicus curiae on

behalf of the National Association of Criminal Lawyers

in the Supreme Court in this case.

Sincerely yours,

/s/ REX E. LEE

Rex E. Lee

Solicitor General

2a

APPENDIX B

SHELLOW, SHELLOW & GLYNN, S.C.

Attorneys at Law

222 East Mason Street

Milwaukee, Wisconsin 53202

Telephone (414) 271-8535

March 4, 1985

Gerald H. Goldstein, Esq.

Goldstein, Goldstein & Hilley

29th Floor,. Tower Life Building

San Antonio, Texas 78205

(National Association of Criminal Defense Lawyers)

Rick Wilson, Esq.

National Legal Aid and Defender Association

1625 K Street, N.W.

8th Floor

Washington, D.C. 20006

RE: RUSSELL HOBSON III v. UNITED STATES

No. 84-1148, United States Supreme Court

Gentlemen:

On behalf of my client in the above-captioned matter,

Russell Hobson, I hereby consent to the filing of an amicus

curiae brief in this case by the National Association of

Criminal Defense Lawyers and the National Legal Aid

and Defender Association.

Very truly yours,

SHELLOW, SHELLOW & GLYNN, S.C.

By: /s/ JAMES M. SHELLOW

James M. Shellow

JMS: pap

cc: Mr. Rex Lee

Mr. Alexander Stevas