Petition for Writ of Certiorari — Gustafson v. United States

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Office-Supreme Sourt, US.

se ee

84-482

No . SEP 26 1984

. a — VAS

In the

Supreme Court of the Unitrh States

OcToBerR TERM, 1984

KEITH H. GUSTAFSON,

Petitioner,

Vs.

UNITED STATES OF AMERICA,

Respondent,

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

NEAL R. LEWIS

1899 South Bayshore Drive

Miami, Florida 33133

(305) 854-0050

Attorney for Petitioner

Of Counsel:

JAMES M. SHELLOW

STEPHEN M. GLYNN

Shellow, Shellow & Glynn, S.C.

222 East Mason Street

Milwaukee, Wisconsin 53202

STEPHEN A. SALTZBURG

Professor of Law

University of Virginia

School of Law

Charlottesville, Virginia 22901

UNITED STATES LAW PRINTING CO., CHICAGG, ILLINOIS 60618 (312) 525-6581

QUESTIONS PRESENTED

1. Did the court of appeals err by holding that mari-

huana violations can be ‘‘predicate acts’’ sufficient to

support a RICO conviction; by ignoring Congress’ delib-

erate decision to remove marihuana from the list of of-

fenses set forth in the racketeering statute; and by failing

io recognize that the special provisions Congress made for

marihuana offenses in drug laws enacted prior to 1970, and

in comprehensive drug reform legislation enacted in 1970,

are inconsistent with a judicial decision that marihuana

falls within the racketeering statute?

2. Did the court of appeals err in basing its decision

that marihuana offenses can be ‘‘predicate acts’’ sufli-

cient to support a racketeering conviction on dictum in a

prior case which had been cited in only one other case with-

out an analysis of either the statute or its legislative his-

tory rather than looking to the clear Congressional intent

that is demonstrated in the language and legislative his-

tory of the racketeering statute?

PARTIES BELOW

In addition to the United States of America, the follow-

ing persons were parties to the proceeding in the United

States Court of Appeals for the Eleventh Circuit, the

court whose judgment is sought to be reviewed:

Keith H. Gustafson

Chan Walker Zielie

Thomas David Wilkerson

Robert Walter Govern

Leon D. Mausser

TABLE OF CONTENTS

PAGE

Questions Presented. ..............iciciiiotescnncennenens i

Parise DU vciinicscnecsnsinirg cee i

Table (2 CRRA xosscicincin eee “ae il

Table OF AmTRONTIUNG 6.60 ccls ee iv

Opinion Below ..............-....-..00--<-+ <éncisunbaenccusipnnginsaliasenis 1

Ser BOTA, anes ecercnsninssccienesshicelanrrint~ dati ees ad aaa 1

twee BAW G OR ~.sceciceecessccsssinwssns--secnacesinsemneniaans 2,

Statement CE Taw CM wa viv esis scersssesesseeateaien-s eens 3

Reasons For Granting The Writ -.....2...0......2-2............. 4

The Court of Appeals has decided an important

question of federal law which has not been, but

should be, settled by this Court —.....00.00000020000.0...... 4

A. The Court of Appeals ignored the language

of the RICO statute and its history; its

decision flies in the face of congressional

BRINE on cannes vcecsses cases geen ees 5)

B. The Court of Appeals’ decision creates the

very evil that Congress sought to avoid ... 11

C. The Court of Appeals ignored this court’s

decisions regarding statutory interpreta-

tion and substituted its preferences for

those of the congress that enacted RICO ... ‘14

Cepmpmh ooccinsinsns:cosicectesieomuions } peace caehasaaelecceneaaee 16

Appendix:

PAGE

1. Kleventh Circuit Opinion in United States v.

Zielie, et al., 734 F.2d 1447, 1462 (11th Cir.

a ene dk cept dhcan ca séaatnedAcnapincenlconn App. 1

2. Opinion Denying Rehearing and Suggestion

for Rehearing En Bane ...................................App. 29

3. Pertinent Portion from Fifth Cireuit Opinion

in United States v. Smith, 574 F.2d 308

(5th Cir.), cert. denied, 439 U.S. 931

I esl Seiden cckcns spadidicpscecmatnscieak Seindainauaciensied App. 31

4. Pertinent Portion of Platshorn’s Brief in

United States v. Phillips, 664 F.2d 971 (5th

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

Naa sh oak cLicccctsnteiiegantiinak ccna App. 37

do. Pertinent Portion of Government Brief in

United States v. Phillips, 664 F.2d 971 (5th

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

ESTER Ee Oe i are en ar App. 38

6. Pertinent Portion from Fifth Cireuit Opinion

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

(5th Cir. 1981) (Unit B), cert. denied, 457

sco. sss cweninindttninceuianache App. 39

TABLE OF CASES AND AUTHORITIES

Cases

PAGE

Albernaz v. United States, 450 U.S. 333 (1981) _...... 16

American Textile Manufacturers Institute, Ine. v.

Donovan, 450 U.S. 490 (1961) ...................................... 10

Busic v. United States, 446 U.S. 398 (1980) 000... 16

McElroy v. United States, 455 U.S. 642 (1982) ........... 14

Russello v. United States, 104 S. Ct. 296 (1983) ..4, 9, 10, 16

United States v. Acosta, No. 83-3045 (11th Cir. Appel-

Rees DE GE UT Ty GEE Siewitivreiemiccnm 4

United States v. Basearo, No. 82-5547 (11th Cir. argued

SP I CII act csp dhs teacseaastibcasenichs Waiarmmeiainiecninceaaets 4

United States v. Erp. No. 83-3611 (11th Cir. Appel-

lee’s brief filed August 31, 1984) 200.0000. com

United States v. Naftalin, 441 U.S. 768 (1979) —.......... 10

United States v. Phillips, 664 F.2d 971 (5th Cir.

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

SE ER RSI DSS te lar INS 3, 14, 15

United States v. Sells Engineering, Ine., 103 8S. Ct.

RRR SES a RNC OAC ch yer HC Rea en Pa 10

United States we Smith, 574 F.2d 308 (Sth Cir.), cert.

I, Ge Erie He COTE sierra 14, 15

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

1313 (7th Cir.) (en bane), cert. dened, 454 U.S. 1082

IUPUI: cscs sssncscacsdshd ebehtappensabicaaline ieclieeaaaaticaeA ab inisadiaas &

United States v. Turkette, 452 U.S. 576 (1981) 00... 9, 16

United States v. Wong Kim Bo, 472 F.2d 720 (5th

Rs I accede acesiailcsitiesh iopsusitetiesneiecucsillabininaceciacuictaeiieaasiabii 10

United States v. Zielie, 734 F.2d 1447 (11th Cir. 1984) 3

Statutes

PAGE

18 U.S.C. $1961 (1976) ........... IAL A ROMO N I

18 U.S.C. $$1961-1968 (1982) 2000. LS an

18 U.S.C. §1961(1)(A) (1982) 20... aoe

18 U.S.C. §1961(1)(D) (1976) 0... 2,7

18 U.S.C. §1961(4), (5) (1976) 0... tear

MS UBC. SIOGR(e) (TOME) nnn eecsecccecccc ce Hie 2,3

ede | |, | ae Recta eIee 3

18 U.S.C. §§2510-2520 (1970) oo 6

Oe ps I I ine nmugien se aaa eins 6

IS U.S.C. $2526(1)(e) (BOT) nnn eccccccccccccccccccce.. 6

RE UGC, GORE CEOCR) anaes vcccccceeecckocsisccccee Siam 3

Sb UES: SE eee a ae ee 6

Se Ae ERO UEe TNO snnishsesesiedbinanspsodoreases cdemdicca nse 6

21 U.S.C. §821(v)(3) (Supp. V 1970) 0. 5

21 U.S.C. §331(q)(2) (Supp. V 1970) 00. 6

21 U.S.C. §333(b) (Supp. V 1970) 200 6

A Shee I Deans scnissesecca niceties ss %)

21 U.S.C. $822 (1970) ............. onciamishenghamaiamaieiiatae y

ee RR Se ND ie sake 9

Se Ge: Be RO -biiicsciinniucneunlecaasena Ey Iate )

Se TR Ge CD ecihvcscccricnethiinentcale es Hy)

an IIIS Den eet Le )

21 U.S.C.

21 U.S.C

21 U.S.C.

21 U.S.C,

21 U.S.C.

21 USC.

21 U.S.C,

21 U.S.C.

28 U.S.C.

PAGE

$341(a)(1) (1970) -aaecccscevee -oncessssssssesseennnneceeee y

$841(b)(1)(A) (1970) essesssssssssesssseesceeseteeeeee 7

$841(b)(1)(B) (1970) ...csssssesssseessesestettneeeeee 7

$841 (b) (2) (1970) scscsscsssssccessnsssessosseconneseseenen 7

§841(b)(3) (1970) nee ssinasnensiauniant 7

$841 (b) (4) (1970) ooccccccccssesessssssseseessnsnnnnnneeeenee 13

$842 (a) (1970) ceecccccecceeccssceceececcescecceeeeeceeeceeseeee g

$842(¢) (2) (BB) (1970) ecccccsseeseccscseccsseceseeeeeee 7

$843 (a) (2) (1970) ccececcececesssecescecceseeeeeeseeeeceeee 9

$843(a) (3) (1970) ceceoscressss-sosorsssnsancnessssssessnses 9

SAN: CRITI ciscesnnnnscinansinencsenmnasassstr 7

BN TOI rccssinsenascetarcnsemoniinicansinnaennscsin 12, 13

BOOUERD CRODUD annercecnsceoensininrermsnsnionnnsesoninesn 9

$844(b) (1) (1970) .cecccssssssssssssscssssesseeeeeeeeeseeee 7

BEE COIN oscecnnnncysiasnsannnscomenssnnminnivienesbilians 3

OIC) COIN cansacinessenrersosensinonnnnnvnsnaneesnin 9

S&L: |) ee 9

$960(a) (1970) ecccccccceccesesseeseeeseeseeeeeeeeeeeeeeeeescee 9

$962(b) (1970) .occccscsssseeseeeeeeesseseessteeceteeetneeeeeee 7

$1254(1) (1982) ...eescccseveeeeseseeseeseseeseseeeeeeeseeetee 2

vii

Other Authorities

PAGE

H. Rep. No. 91-978, 91st Cong., 2d Sess. 92 (1970) .. 1

H. Rep. No. 91-1444, 91st Cong., 2d Sess., repronted in

1970 U.S. Code Cong. & Ad. News 4566-4660 7

H. Rep. No. 91-1446, 1970 U.S. Code Cong. & Ad.

SN s

S. 2049, 90th Cong., Ist Sess., see. 2(1) (1967) .......... s

S. 1623, 91st Cong., Ist Sess., see. 2(1) (1969) ............ 8

Blakey, Materials on RICO: Criminal Overview, 1

Techniques in the Investigation of Organized Crime

24 (Cornell Institute on Organized Crime, Blakey

Blakey & Gettings, Racketeer Influenced and Corrupt

Organizations (RICO): Basic Concepts—Criminal

and Civil Remedies, 53 Temp. L. Q. 1009 (1980) .. 8

Iu the

Supreme Court of the Anited States

OcrosBer TERM, 1984

No.

KEITH H. GUSTAFSON,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

OPINION BELOW

The opinion of the Court of Appeals is reported at 734

F.2d 1447 (11th Cir. 1984). It is reproduced in the Ap-

pendix to this Petition at App. 1-28.

JURISDICTION

The judgment sought to be reviewed by writ of certiorari

was dated and entered June 25, 1984. Rehearing and re-

hearing en banc were denied by an order of the Eleventh

Cireuit issued and filed July 30, 1984. App. 2. The stat-

utory provision which confers on this Court jurisdiction

to review the judgment in question by writ of certiorari is

28 U.S.C. $1254(1) (1982).

STATUTES INVOLVED

18 U.S.C. §1961. Definitions

As used in this chapter—

(1) “racketeering activity” means .

(D) any offense involving fraud connected with a

case under title 11, fraud in the sale of secur:iies, or

the felonious manufacture, importation, receiving, con-

cealment, buying, selling, or otherwise dealing in nar-

cotic or other dangerous drugs, punishable under any

law of the United States;

(4) ‘‘enterprise’’ includes any individual, partner-

ship, corporation, association, or other legal entity,

and any union or group of individuals associated in

fact although not a legal entity;

(5) ‘‘pattern of racketeering activity’’ requires at

least two acts of racketeering activity... .

18 U.S.C. §1962. Prohibited activities

by or associated with any enterprise engaged in, or the

activities of which affect, interstate or foreign com-

merce, to conduct or participate, directly or indirectly,

in the conduct of such enterprise’s affairs through a

pattern of racketeering activity... .

STATEMENT OF THE CASE

In 1982 an 18-count indictment was returned by a grand

jury in the Middle Distriet of Florida. Keith Gustafson,

petitioner, one of 13 defendants, was charged in three

counts: Count 1 alleged a conspiracy in violation of the

racketeering statute [RICO, 18 U.S. §§1961, 1962(d)

(1976)]; count 2 charged a substantive RICO violation

[18 U.S.C. §§1961, 1962(c) (1976) ]; and count 16 charged

a marihuana conspiracy [21 U.S.C. $846 (1976)]. In its

presentation in the district court, which had jurisdiction

pursuant to 18 U.S.C. $3231 (1982), the government ad-

duced evidence that the defendants associated together to

profit from the large-scale distribution of marihuana. Five

defendants, including petitioner, were tried together. Pe-

titioner was convicted on ali zounts by a jury on Novem-

ber 10, 1982. On December 28, 1982 judgment was en-

tered and petitioner was sentenced to 12 years imprison-

ment and fined $35,000.

Petitioner s\aght to overturn his racketeering convic-

tion in the court of appeals on the ground, inter alia, that

marihuana offenses cannot be used as predicate offenses

under the RICO statute. He briefed and argued the issue

in the trial court and the court of appeals; both decided

it against him. The court of appeals devoted only one foot-

note to the issue and cited only one case, United States v.

Phillips, 664 F.2d 971, 1040 (Sth Cir. 1981) (Unit B), cert.

denied, 457 U.S. 1136 (1982), in support of its disposition

of the issue. United States v. Zielie, 734 F.2d 1447 (11th

Cir. 1984). App. 1.

‘

REASONS FOR GRANTING THE WRIT

The Court of Appeals hes decided an important question

of federal law which has not been, but should be, settled

by this Court.

The Court of Appeals for the Eleventh Circuit has held

that the government may charge a defendant with violating

the Racketeer Influenced and Corrupt Organizations

(RICO) chapter of the Organized Crime Control Act of

1970, 18 U.S.C. §$1961-1968 (1982), by alleging that he

committed two offenses involving marihuana while he was

associated with an enterprise. Petitioner believes that the

court of appeals ignored this Court’s opinions regarding

proper interpretation of federal statutes, rendered its de-

cision in the face of clear legislative history compelling

a different conclusion, failed completely to address that

legislative history, and ultimately based its decision on

prior cases that never addressed the statutory questions

which petitioner raised in the court of appeals.

The government in the Eleventh Circuit continues to

charge RICO violations based on marihuana offenses,’

and the court of appeals’ decision indicates that it will

permit the government to do so. Petitioner urges this

Court to grant review to decide whether the court of ap-

peals has substituted its own view of the proper reach of

RICO for the reach that Congress chose in 1970.

This Court has said time and again that its role is to

construe the statutes that Congress has enacted, not to

write laws for Congress. Just last term, in Russello v.

United States, 1048S. Ct. 296 (1983), the Court emphasized

that when interpreting the RICO statute, a court must

look to see what Congress did in enacting the statute. In

petitioner’s case, the court of appeals declined to begin

1 See, e.g., United States vy. Bascaro, No. 82-5547 (11th Cir.

argued May 23, 1984) ; United States v. Acosta, No. 83-3045 (11th

Cir. Appellee’s brief filed July 11, 1984); United States v. Erp,

No. 83-3611 (11th Cir. Appellee’s brief filed August 31, 1984).

with the statutory language and to consider how to inter-

pret that language in light of the background and history

of the racketeering statute. Instead, it cited its prior de-

cision, which had examined neither the language nor the

history of the statute and which had rested, in fact, sole-

ly on dictum in a prior case which did not even purport

to address the issue that petitioner presented.

A. The Court of Appeals Ignored the Language of the

RICO Statute and Its History; Its Decision Flies in

the Face of Congressional Intent.

A brief review of the developments leading to the pas-

sage of RICO indicates how far the court of appeals de-

parted from congressional intent. It also demonstrates

the importance of the issue and the need for prompt reso-

lution by this Court.

It is important to note that in October of 1970, Congress

enacted two laws significant to the issues presented in this

petition. One was the racketeering statute; the other was

the Comprehensive Drug Abuse Prevention and Control

Act of 1970, 21 U.S.C. $$801-966 (1970).

Prior to the enactment of the 1970 statute which re-

drafted and reorganized federal drug laws, the Unifed

States Code punished three categories of drug offenses:

narcotic drugs, marihuana, and depressant or stimulant

drugs.” Thus, for example, Congress penalized sales of

* The term “depressant or stimulant drug’ was defined to include

lysergic acid diethylamide (LSD) and other drugs with hallucino-

genic effects. 21 U.S.C. §321(v)(3) (Supp. V 1970). This same

definition expressly distinguished narcotic drugs and marihuana

from the depressant or stimulant drugs: “. . . except that the

Secretary shail not designate . . . any substance that is now in-

cluded, or is hereafter included, within the classifications stated in

section 4731 [narcotic drugs], and marihuana as defined in section

4761, of Title 26.” 7d.

nareotic drugs under 21 U.S.C. §174 (1964) ; sales of mari-

huana under 21 U.S.C. $176a (1964); and sales of depres-

sant or stimulant drugs under 21 U.S.C. $$331(q)(2) and

333(b) (Supp. V 1970). In this manner Congress not only

distinguished narcotic drugs from marihuana, it also dis-

tinguished these substances from all other dangerous drugs

regulated by federal law.

In 1968 Congress enacted Title LI of the Omnibus

Crime Control and Safe Streets Act, 18 U.S.C. §$§2510-

2520 (1970). The statute permitted court-ordered wiretaps

and electronic surveillance. In 18 U.S.C. §2516 Congress

specified the crimes that could be investigated pursuant

to the new legislation. One class of crimes was decribed in

$2516(1)(e) as including “any offense involving . .. the

manufacture, importation, receiving, concealment, buying,

selling, or otherwise dealing in narcotic drugs, marihuana

or other dangerous drugs, punishable under any law of

the United States.’’

The choice of this language is significant, since had

Congress not included the words ‘‘dangerous drugs’’ in

the legislation, it would have limited the use of the statute

in drug cases to the few drugs defined as narcotics and to

marihuana. By including the additional language, Congress

established that drugs which were regulated by federal

law and made subject to criminal prosecution were within

the scope of offenses to which the wiretap legislation was

directed. The language also indicated that Congress recog-

nized that its prior enactments governing drug offenses

had distinguished narcotic drugs from marihuana and these

two categories from all other drugs. Congress plainly rec-

ognized the need to add the language ‘‘dangerous drugs”’

in order to reach the remaining regulated drugs—e.g.,

hallucinogens, stimulants and depressants.

(

“iurtly thereafter, Congress decided to revamp federal

-ug laws, and %t enacted the 1970 Controlled Substances

ct. Tais striate adopted the term ‘‘controlled substance’’

to cover all drugs subject to federal regulation. Signifi-

cantly, however, Congress continued to specifically define

both nareotie drugs and marihuana and to make special

provision for them. Congress also continued to lump other

controlled substances together and not to make special pro-

vision for them. Thus, the pre-1970 categories were con-

tinued in the 1970 Code, and 21 U.S.C. $$841(b)(1)(A),

(b)(1)(B), (b)(2), (b) (3); $842(e)(2)(B); — §$848(e);

$844(b)(1); and $962(b) each referred to ‘‘. .. any other

law of the United States relating to narcotic drugs, mari-

huana, or depressant or stimulant substances.’’

Much of the legislative history of the drug reform statute

is found in H. Rep. No. 91-1444, 91st Cong., 2d Sess., re-

printed m 1970 U.S. Code Cong. & Ad. News 4566-4660,

which indicates that Congress specifically intended to car-

ry forward its special treatment of narcotic drugs and

mariuhana. Although Congress chose the term ‘‘controlled

substances” to cover all drugs within the purview of the

new legislation, it specifically provided that, although

marihuana and narcotic drugs were within this term, they

would have their own separate definitions and special pro-

visions often would govern these substances.

The same Congress that enacted the drug reform statute

enacted the RICO legislation during the very same month.

RICO authorizes convictions for racketeering activity de-

fined in i8 U.S.C. $1961. Section 1961(1) defines racketeer-

ing activity to include ‘‘any offense ... involving .. .

buying, selling, or otherwise dealing in narcotie or other

dangerous drugs, punishable under any law of the United

States.’’ $1961(1)(D).

The word “marihuana” does not appear in the RICO

legislation, and its absence is not inadvertent. It was in-

cluded in earlier drafts of RICO which Congress rejected/

In 1967, for instance, see. 2(1) of S. 2049, 90th Cong., 1st

Sess., defined “criminal activity” to mean “any act in-

volving . . . importation . . . or otherwise dealing in nar-

cotic drugs or marihuana ... punishable under any statute

of the United States” (emphasis added). Identical lan-

guage was included in see. 2(1) of 8. 1623, 91st Cong., 1st

Sess. (1969). The principal drafter of the statute, G. Robert

Blakey,? who had previously drafted the wiretap portions

of the 1968 Omnibus Crime Control and Safe Streets Act,

sought to include the word ‘‘marihuana’’ in the RICO

statute in the same way it had been used two years earlier.‘

Similarly, Deputy Attorney General Richard Kleindienst

suggested to the Senate Subcommittee on Criminal Laws

and Procedures that marihuana ought to be covered by

RICO. However, a deliberate congressional decision was

made to eliminate marihuana from the statute.*

Thus, the legislative history of the Controlled Substances

Act and of RICO, which were being simultaneously consid-

ered, demonstrates that Congress believed there were three

major classes of drug offenses: those involving narcotic

drugs, those involving marihuana and those involving other

dangerous drugs. The three classes are clearly set forth

in a portion of H. Rep. No. 91-1446, supra, 1970 U.S. Code

Cong. & Ad. News 4566, 4640.

3 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).

4 The legislative history of RICO is traced in detail in Blakey &

Gettings, Racketeer Influenced and Corrupt Organizations (RICO):

Basic Concepts—Criminal and Civil Remedies, 53 Temp. L. Q.

1009, 1014-21 (1980).

5 Blakey, Materials on RICO: Criminal Overview, 1 Techniques

in the Investigation of Organized Crime 24 (Cornel! Institute on

Organized Crime, Blakey ed. 1980).

At the time it was considering both the RICO and the

drug reform legislation, Congress was aware that it had

made specific provision for narcotic drugs and marihuana

in pre-1970 legislation and that it had treated most other

drugs subject to criminal regulation as a separate group.

These other drugs were the ‘‘dangerous drugs’’ referred

to in the 1968 wiretap statute. The wiretap statute specif-

ically included marihuana, thereby demonstrating that

Congress recognized that marihuana and dangerous drugs

were in different categories. Congress also was aware

that had it wanted marihuana—or all drugs covered by

federal law—to be included in the RICO legislation, it

could have simply used the term ‘‘controlled substance’’

in the section of the statute defining racketeering acts.®

This Court has already observed that members of Congress

who voted for RICO were aware of the Controlled Sub-

stances Act. Russello v. United States, 104 S.Ct. at 301.

Congress intentionally avoided the term ‘‘eonirolled sub-

stance’’ in RICO and thereby specifically declined to in-

elude marihuana.

The sole effect of not using the term ‘‘controlled sub-

stance’’ was to eliminate marihuana from the coverage of

the statute, since all other controlled substances are either

dangerous drugs or narcotic drugs and thus within the

definition of racketeering activity.

This Court has said in another RICO case, United States

v. Turkette, 452 U.S. 576, 580 (1981), that ‘‘[i]n deter-

mining the scope of a statute, we look first to its language,’’

and if the language is unambiguous, it is ordinarily re-

garded as conclusive. A look at the language of RICO

° This is exactly what Congress did throughout the Controlled

Substances Act. See. ¢.g., $§822; 824(a) ; 825; 826; 827; 841(a)

(1) ; 842(a) ; 843(a)(2), (3); 844(a) : 849(e) ; 955a; 960(a) of

Title 21, United States Code (1970).

reveals that the word ‘‘marihuana’’ is not found. ‘‘Mari-

huana’’ was included in early drafts of the legislation and

its absence is no accident. The plain language of the stat-

ute indicates that marihuana offenses are not predicate

acts supporting RICO convictions.

In American Textile Manufacturers Institute, Inc. v.

Donovan, 450 U.S. 490, 508-511 (1981), the Court held that

when it is clear that Congress knows how to say something

and Congress has chosen not to say it, federal courts should

not read into a statute more than Congress intended to be

there. Additionally, the Court noted in Russello v. United

States: ‘‘{Wlhere Congress includes particular language

in one section of a statute but omits it in another section

of the same Act, it is generally presumed that Congress

acts intentionally and purposely in the disparate incelu-

sion or exclusion.’’ 104 S.Ct. at 300, quoting United States

v. Wong Kim Bo, 472 F.2d 720, 722 (Sth Cir. 1972).

Although the 1968 wiretap statute and RICO were not

enacted at the same time, both statutes were sponsored

by Senator McClellan, both were drafted by Professor

Blakey, both were processed through the same Senate sub-

committee. As part of a related statutory scheme enacted

close in time, the 1968 statute and the RICO legislation

should be considered together. See United States v. Sells

Engineering, Inc., 103 S.Ct. 3133, 3144 (1983).

The only conclusion from such consideration is that Con-

gress meant to do what it did in the 1970 RICO statute:

exclude marihuana from its coverage. Of course, Congress

could have included marihuana in RICO had it wished,

but ‘‘[t]he short answer is that Congress did not write

the statute that way.’’ Russello v. United States, 104 S.Ct.

at 300, quoting United States v. Naftalin, 441 U.S. 768, 773

(1979).

The statutory language used by Congress in RICO is

consistent with the language it was using while deliber-

ating on the Controlled Substances Act of 1970. Even if

the statute were not as clear as it is, its drafting back-

zround alone would support only the reading that peti-

tioner asserts. The conscious omission of the word ‘‘mari-

huana’”’ over the protest of Deputy Attorney General Klein-

dienst and the drafting preference of the principal archi-

tect of the statute, Professor Blakey, leads ineluctably to

the conclusion that marihuana is simply not within the

reach of the statute.

B. The Court of Appeals’ Decision Creates the Very Evil

That Congress Sought to Avoid.

It is not surprising that Congress would have deter-

mined not to include marihuana within RICO. Had it been

included, many situations would have fallen within the

statute’s coverage:

Situation 1. At a college fraternity or sorority

party, or at a meeting of a philosophy discussion

group or a club of young adults, a member of the

group shares marihuana with two friends. Since a

fraternity, sorority, discussion group or club may

be a RICO enterprise, and since distribution of mari-

huana would have been a felony in almost every state

when RICO was passed,’ the group member who

shared the marihuana could be convicted of racketeer-

ing.

Situation 2. A husband and wife share marihuana

in the privacy of their own home. Since a marriage

might be an enterprise (association in fact), if the

spouses share marihuana with one another twice,

each might be convicted of racketeering as long as

state law punished distribution as a felony.

™See H. Rep. No. 91-978, Ylst Cong., 2d Sess. 92 (1970).

Petitioner does not urge that Congress could not have

enacted a statute that would reach these situations and

that would punish the activity described as racketeering.

Nor does he argue that such a statute would have been uni-

formly regarded as undesirable when RICO was enacted.

Petitioner simply maintains that Congress did not pass

such a statute and that it made as clear a statement as it

could that it did not want to reach marihuana under the

racketeering laws.

Congress provided in 21 U.S.C, $844 (1970) that pos-

session of any controlled substance would be a misdemea-

nor, unless a person had previously been convicted of vio-

lating federal law. Section 844 is significant because it

reveals that Congress understood how to use the term

“controlled substances” when it wanted to cover all drugs

regulated by federal law.* It is even more significant to

the petitioner’s case, because Congress indicated that all

drugs would be treated alike when simple possession was

charged; i.e., whether a person possessed a drug—any

drug—on one, two or twenty occasions, he would be guilty

only of misdemeanors unless his possession came after a

federal conviction for a drug violation.

At the same time Congress adopted this section in the

drug reform statute, it provided in the RICQ legislation

that certain activity in connection with narcotics and dan-

gerous drugs could be reached; however, it left possession

out of the definition of such activity. Thus, the combina-

tion of the two statutes meant that not only had Congress

provided that possessory offenses regarding all drugs

would be federal misdemeanors, but also Congress had

limited the reach of RICO so that it would not include

simple possessory crimes.

% See supra note 0.

While it treated all controlled substances identically

insofar as simple possession was concerned, Congress

specifically enacted 21 U.S.C. $841(b)(4) (1970), which es-

tablishes that a person who violates federai law “by dis-

tributing a small amount of marihuana for no remuneration

shall be treated” under $844. Thus, Congress determined

that simple possession of al! drugs would be a misdemea-

nor but that gifts of any drug except marihuana would

be a felony. This demonstrates that Congress paid special

attention to marihuana and continued to treat it specially

in its 1970 legislation, as it had done prior to 1970.

Under the court of appeals’ decision, Congress’ careful

approach to marihuana is undermined. That decision

would interpret RICO so that gifts of small amounts of

marihuana in any state which made distribution a felony

in 1970—and virtually every state did—could be a predi-

cate offense under 18 U.S.C. §1961(1)(A) (1982). This

interpretation has the perverse effect of turning Congress’

efforts to remove small gifts of marihuana from the felony

offense category into a scheme to punish as racketeers

the people described in the two situations above. The fact

is that Congress selected marihuana and only marihuana

for special treatment in 21 U.S.C. $841(b)(4) (1970), and

the special legislation covered small gifts.

Thus, petitioner asks this Court to grant his petition

in order to address the iriportant question of how far

the federal RICO statute was intended to reach. The court

of appeals gave the statute a reach that was not intended

by Congress and that is totally inconsistent with the eare-

ful approach iv marihuana that Congress evidenced in its

1970 drug reform statute.

C. The Court of Appeals Ignored This Court’s Decisions

Regarding Statutory Interpretation and Substituted

Its Preferences for Those of the Congress That En-

acted RICO.

Petitioner also asks this Court to grant certiorari be-

cause the court of appeals has refused to follow the Court's

direction that statutes should be interpreted to further

the intent of Congress, not the predilections of judges.

In McElroy v. UnitedeStates, 455 U.S. 642, 656 n.21

(1982), this Court declined to accept a petitioner’s con-

struction of a statute, even though supported by several

lower court decisions. The Court observed that “none of

the cases based its holding on an analysis of the language,

legislative history, or purpose” of the statute; it further

noted that the cases “quoted the pertinent language” of

the statute and “held, without analysis or citation to au-

thority,” that a certain result was obvious. There could

be no more accurate way to describe the manner in which

the court of appeals handled the important issue of the

scope of RICO in petitioner’s case.

The court of appeals, in a footnote rejecting petitioner’s

argument, relied only upon United States v. Smith, 574

F.2d 308 (Sth Cir.), cert. denied, 439 U.S. 931 (1978), and

United States v. Phillips, 664 F.2d 971 (5th Cir. 1981)

(Unit B), cert. denied, 457 U.S. 1136 (1982). in Smith, a

summary calendar disposition attached to this Petition

at App. 31, the United States Court of Appeals for

the Fifth Cireuit rejected a defendant’s pretrial motion

to dismiss an indictment on double jeopardy grounds. It

held that prior convictions for conspiracy to distribute

marihuana and for possession with intent to distribute

did not bar a subsequent RICO prosecution using the

marihuana offenses and other non-drug crimes as predi-

cates. Smith never argued that a RICO prosecution could

not be predicated solely on marihuana offenses. Rather,

he maintained that the previous convictions barred an-

other prosecution—one that, in his view, could have been

maintained had there been no prior convictions.

Before the Eleventh and Fifth Cireuits split, Unit B

of the Fifth Cireuit decided United States v. Phillips, and

rejected a claim that was put forward in approximately

one double-spaced page of one defendant’s (Platshorn’s)

brief that marihuana was not a narcotic or dangerous

drug. The relevant portion of the brief is found at App.

37. The government responded by citing the Smith opin-

ion, even though Smith had not considered Platshorn’s

question. The relevant portion of the government’s brief

is found at App. 38.

Relying on the government’s brief, the court decided

against Platshorn and disposed of his claim in a single

paragraph which simply asserted that ‘‘|m]arijuana may

be the subject matter of a RICO charge.’’ 664 F.2d at 1040.

The only case cited was Smith. Lronically, the government

had argued that Platshorn should address his claim to

Congress rather than to the courts. What Platshorn un-

successfully tried to do was to have the court construe the

statute in the light of congressional intent. This the Phil-

lips court declined to do. Instead, it looked to one prece-

dent that was not even in point.

Because the Eleventh Circuit fellows Fifth Cireuit prec-

edents unless it goes en banc to create new precedent,

when petitioner raised his challenge to the RICO presecu-

tion, the Eleventh Cireuit disposed of it in a footnote. 734

F.2d at 1462, n.11. App. 39. The only case cited is Phil-

lips.

Petitioner asked for a rehearing and urged the court to

look at the legislative history, but his request was denied.

App. 29. As a result, one case’ not in point, followed with-

out analysis by a second case, has produced a rule thai

controls in the court of appeals: marihuana is covered by

RICO.

Surely, the intent of Congress warrants more respect

than this. This Court looked to Congress’ intent in Alber-

naz v. United States, 450 U.S. 333 (1981), in interpreting

the Comprehensive Drug Abuse Prevention and Control

Act of 1970. The Court looked to Congress’ intent in

United States v. Turkette, 452 U.S. 576, in interpreting

the RICO siatute. The Court returned to Congress’ intent

just last term in Russello v. United States, 104 S.Ct. 296,

to again construe RICO.

Petitioner asks only that the Court look to Congress’

intent in his case as well. Surely legislative intent is not

examined only to expand criminal statutes; it is the core

of statutory construction. See, e.g., Busic v. United States,

446 U.S. 398 (1980) (declining to permit enhanced sentenc-

ing provision for defendant using firearm in course of

felony, where substantive crime provided another enhance-

ment for using dangerous weapon).

CONCLUSION

Petitioner believes that the issues presented in this case

are of tremendous importance, especially as the govern-

ment increases its use of RICO. The approach of the court

of appeals to statutory construction denigrates the impor-

tance of Congressional intent; it produces exactly the re

sult that Congress sought to avoid.

Petitioner recognizes that no court is likely te welcome

a case that raises the possibility that convictions under a

major federal statute might have to be overturned. But

the scope of the RICO statute is better determined now

rather than later, since a decision that RICO does not

reach marihuana offenses will at least assure that future

judicial resources are not squandered on improper prose-

cutions.

If petitioner’s argument prevails, the convictions of the

underlying marihuana predicates will remain valid. Judi-

cial recognition that Congress did not intend RICO to

reach marihuana offenses does not mean that marihuana

offenders will escape punishment.

Petitioner asks this Court to grant review and do what

the Court of Appeals did not: apply RICO as Congress

intended.

Respectfully submitted,

Neau R. Lewis

1899 South Bayshore Drive

Miami, Florida 33133

(305) 854-0050

Attorney for Petitioner

Of Counsel:

JaMES M. SHELLOW

STePpHEN M. Guynn

SHELLOW, SHELLOw & Gtiyny, S.C.

222 East Mason Street

Milwaukee, Wisconsin 53202

SrePHEN A. SaLTzBuRG

Professor of Law

University of Virginia

School of Law

Charlottesville, Virginia 22901

APPENDIX

APPENDIX 1

UNITED STATES of America,

Plaintiff-Appellee,

Vv.

Chan Walker ZIELIE, Keith H. Gustafson, Thomas

David Wilkerson, Robert Walter Govern, and Jueon

D. Mausser, Defendants-Appellants.

No. 82-3167.

United States Court of Appeals,

Eleventh Circuit.

June 25, 1984.

Appeals from the United States District Court for the

Middle District of Florida.

Before FAY, VANCE and HATCHETT, Circuit Judges.

FAY, Circuit Judge:

This case involves a group of individuals who associated

together to profit from a large marijuana distribution net-

work. Thirteen defendants, including the five appellants,

were originally charged in an eighteen-count indictment.'

Following a jury trial appellants were convicted of con-

spiring to violate and violating the racketeering statutes,

18 U.S.C. §§ 1961, 1962(a), (c) and (d), and 1963 (1980) ;

the Travel Act, 18 U.S.C. §§ 1952’ )(3) and 2 (1980); the

federal drug laws, 21 U.S.C. 841(a)(1) and 846 (1980)

' Thirteen people were charged on some or all of the counts in

the original indictment. Appellants Govern, Gustafson, Mausser,

Wilkerson and Zielie were found guilty by the jury on November

10, 1982. Codefendant Liberatore entered a plea of guilty during

the first week of trial. The other defendants in the case either pled

guilty prior to trial or remained fugitives.

App. 2

and 18 U.S.C. § 2 (1980); and the personal income tax

laws, 18 U.S.C. § 371 (1980). Each appellant challenges

his convictions on numerous grounds. After careful ex-

amination of each of their arguments, we affirm each ap-

pellant’s conviction on each count charged in the indict-

ment, with the exception of the conviction of Robert Gov-

ern on Count Twelve, which we vacate.

I. THE FACTS

Robert Govern supervised a large network which dis-

tributed multi-ton quantities of marijuana from 1977 until

1982. Tony Fernandez was the head of the importation

phase of the operation. Directly under Fernandez was

appellant Govern, the head of the American distribution

network, who purchased the marijuana from Fernandez

and then resold it. Appellant Gustafson and Todd Reynolds

worked directly for Govern. Tom Tucker, Steve Liberatore,

Emmett Holcomb and appellant Zielie were some of the

buyers of Govern’s marijuana. These buyers, in turn, had

their own employees in the network. Appellant Mausser

accepted payments for the marijuana and was part of

Govern’s money laundering projects.

The evidence showed a highly structured and well-

organized distribution network. There were numerous

farms used as stash houses in Florida, Georgia and Texas.

The money was kept and collected at Govern’s Holatee

Trail house in Florida. The marijuana was usually dis-

tributed in quantities ranging from 28,000 to 32,000

pounds.? There was a whole network of drivers. Deliveries

and pick-ups could only be made between 8:00 a.m. and

2The enterprise distributed vast amounts of marijuana. For

example, in a five month period in 1978 approximately 150,000

pounds of marijuana passed through Govern’s Loxahatchee house.

App. 3

5:00 p.m., Monday through Friday. Employees in the oper-

ation had fixed weekly salaries. By late 1978 the distribu-

tion network had expanded outside of Florida.

This successful enterprise generated huge amounts of

eash. The evidence showed that Govern had a cache of

at least $2.5 million. Govern, through an attorney, set up

an off-shore corporation named Mexivest, N.V. It served

as the conduit for channeling Govern’s drug money into

an apartment complex and a lumber business. Money was

also laundered by many off-the-books and under-the-table

transactions with the subcontractors involved in the con-

struction of the apartment complex. From the purchase

of the marijuana from Fernandez through the process of

channeling the money into other investments, the evidence

clearly indicated a group of individuals associated in fact

for the purpose of making money through a coordinated

and connected series of marijuana transactions.

II. CHAN WALKER ZIELIE’S CLAIMS

A. Speedy Trial Act

Chan Walker Zielie appeals the district court’s refusal

to dismiss his indictment on the ground that he was de-

nied the right to a speedy trial in violation of the Speedy

Trial Act, 48 U.S.C. $§ 3161-3174 (1976). Zielie was in-

dicted in this case on April 13, 1982. On April 14, he made

his first appearance before a judicial officer in the district

where the indictment was returned. The only motions that

he filed were a motion for a speedy trial and several mo-

tions to be excused from hearings involving his codefen-

dants. The case was set for trial on June 21, 1982.

From April 22, 1982, through June 24, 1982, Zielie’s co-

defendants filed various pretrial motions. On May 28,

1982, the government filed a motion for continuance of the

trial date. Zielie objected to the motion and once more de-

App. 4

manded a speedy trial. Several of his codefendants also

filed motions to continue the trial and the district court

granted the motions on June 8 to serve the ends of justice.

The trial was reset for August 16, 1982. On August 12,

1982 Zielie filed a motion for discharge based upon a viola-

tion of the Speedy Trial Act and the district judge denied

the motion. Zielie’s argument that his right to a speedy

trial was violated is based on his inclusion in his compu-

tation of the time pe:iods during which various pretrial

motions of his codefendants were pending. Yet, by doing

this he ignores both Congress’ statutory intent and the

law in this circuit.

Section 3161(c) of the Speedy Trial Act provides essen-

tially a seventy-day period within which a defendant must

be tried.

In any case in which a plea of not guilty is entered,

the trial of a defendant charged in an information or

indictment with the commission of an offense shall

commence within seventy days from the filing date

(and making public) of the information or indictment

or from the date the defendant has appeared before a

judicial officer of the court in which such charge is

pending, whichever date last occurs. . . .

18 U.S.C. § 3161(c¢).

Yet in calculating the seventy day period, Section 3161(h)

of the Act e-cludes time during which certain proceedings

involving the defendant or a codefendant are pending.

Among these exclusions are three periods of time relevant

to this appeal:

(h) The following periods of delay shall be excluded

in computing the time within which an information or

- an indictment must be filed, or in computing the time

within which the trial of any such offense must com-

mence:

App. 5

(1) Any period of delay resulting from other proceed-

ings concerning the defendant including but not lim-

ited to—

(F) delay resulting from any pretrial motion, from

the filing of the motion through the conclusion of the

hearing on, or other prompt disposition of, such mo-

tion;

(J) delay reasonably attributable to any period, not

to exceed thirty days, during which any proceeding

concerning the defendant is actually under advisement

by the court.

(7) A reasonable period of delay when the defendant

is joined for trial with a codefendant as to whom the

time for trial has not run and no motion for severance

has been granted.

[1, 2) The primary purpose of the Speedy Trial Act

is to accelerate criminal trials. Congress enacted Section

3161(h)(7) because it recognized that multidefendant trials

are desirable for prompt efficient disposition of criminal

eases. It stressed that ‘‘the purpose of the provision is

to make sure that [the Speedy Trial Act] does not alter

the present rules on severance of codefendants by forcing

the government to prosecute the first defendant separately

or to be subject to a speedy trial dismissal motion under

Section 3162.’’ S.Rep. No. 93-1021, 93rd Cong., 2d Session

(1974). For this reason the rule in this cireuit is clear

that a time exclusion that applies to one defendant is ap-

plicable to all codefendants. United States v. Campbell, 706

F.2d 1138 (11th Cir. 1983); United States v. Stafford, 697

F.2d 1368 (11th Cir. 1982); United States v. Varella, 692

F.2d 1352 (11th Cir. 1982): 7’ited States v. Davis, 679

Fd 845 (11th Cir. 1982). Even though Zielie may not

rave triggered any excludable periods of delay by the fil-

ing of his own motions, the periods of exeludable delay

App. 6

generated by the motions of his codefendants are attribut-

able to him under Section 3161(h)(7). There was no viola-

tion of Zielie’s speedy trial rights in this case.

B. Right to be Appointed as Co-Counsel.

Zielie was represented by counsel in this case from the

time of his first appearance. On August 12, 1982, four

days prior to the beginning of the first trial, Zielie moved

to have himself admitted as co-counsel in the case. He

believed that most of the trial would relate only to his co-

defendant Govern, and he could, therefore, have his coun-

sel attend the trial only on the days that directly involved

his case. He would act as his own counsel during the rest

of the trial. The trial court denied his motion. He now

asserts on appeal that he was denied his sixth amendment

right to self-representation by the court’s order.

[3, 4] It is settled law that a defendant has the right

to represent himself in a criminal trial, Faretta v. Califor-

nia, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ;

28 U.S.C. § 1654. He also has the right to the assistance

of counsel. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77

L.Ed. 158 (1932). The concept of self-representation has

been codified in 28 U.S.C. § 1654 (1980) which states that

‘‘fijn all courts of the United States ... parties may

plead and conduct their own case personally or by coun-

sel....’’ However, this provision does not give the crimi-

nal defendant the right to a hybrid representation, t.c.,

partly by counsel and partly by himself. Courts have con-

sistently interpreted the statute as stating a defendant’s

rights in the disjunctive. United States v. Shea, 508 F.2d

82, 86 (Sth Cir.), cert. denied, 423 U.S. 847, 96 S.Ct. 87, 46

L.Ed.2d 69 (1975); United States v. Lang, 527 F.2d 1264

(4th Cir. 1975); Duke v. United States, 255 F.2d 721 (9th

Cir. 1958). The district court did not err in refusing to

let Zielie appear as co-counsel.

App. 7

C. Opening Statement

{5} The second trial* in this case commenced on Sep-

tember 20, 1982. The district judge afforded counsel for all

parties the opportunity to make an opening statement.

Some of the parties chose to make their opening statements

at that time. Zielie’s counsel did not make his statement

then but reserved the right to do so when he presented his

case-in-chief. Wien it was time to present Zielie’s case-

in-chief his counsel advised the district judge that the only

evidence that he would be presenting would be the testi-

mony of co-defendant Govern. Since it quickly became ap-

parent that Govern would invoke his fifth amendment right

against self-incrimination, and thus realistically Zielie

would not be presenting any evidence, the district judge

asked Zielie’s counsel if he still wanted to make an open-

ing statement. Zielie’s counsel advised the court that he

needed an opening statement to explain to the jury gen-

eral points of law. The district judge then denied his re-

quest. Zielie asserts on appeal that the district court’s

ruling was erroneous and he should be granted a new trial.

We disagree.

\6, 7] The purpose of an opening statement ‘‘is to

state what evidence will be presented, to make it easier

for the jurors to understand what is to follow, and to re-

late parts of the evidence and testimony to the whole.*’

United States v. Dinitz, 424 U.S. 600, 612, 96 S.Ct. 1075,

1082, 47 L.Ed.2d 267 (1976). The timing and making of

opening statements is within the discretion of the trial

judge. See United States v. Salovitz, 701 F.2d 17, 21 (2nd

Cir. 1983); United States v. Hershenow, 680 F.2d 847, 858

(1st Cir. 1982). He can exclude irrelevant facts and stop

argument if it occurs. See United States v. Hershenow,

* The first trial in this case began on August 16, 1982. It ended

in a mistrial. See Section LV.

App. 8

680 F.2d at 858; United States v. Freeman. 514 F.2d 1184,

1192 (10th Cir. 1975). The Constitution requires that

trials be fairly conducted and that ‘‘guaranteed rights of

defendants be scrupulously respected.’’ McGautha vy.

California, 402 U.S. 183, 221, 91 S.Ct. 1454, 1474, 28

L.Ed.2d 711 (1971). However, an opening statement by the

defendant is not such a guaranteed right.‘ The making

and timing of opening statements can be left constitu-

tionally to the informed discretion of the trial judge. Al-

though failure to afford a defendant the opportunity to

make an opening statement can constitute error, United

States v. Breedlove, 576 F.2d 57, 60 (Sth Cir. 1978),° this

is not such a case.

[8] The facts indicate that the government had already

rested its case. Defense counsel advised the court that he

would call no witnesses and introduce no evidence. In-

stead, he explained to the court that he needed an opening

statement to explain to the jury the presumption of in-

nocence and other basic points of law. Clearly, this is not

the purpose of an opening statement. An opening state-

ment gives counsel the opportunity to explain the case

to the jury and to outline the proof. ‘‘[1|t is not an oc-

casion for argument.’’ United States v. Dinitz, 424 U.S.

at 612, 96 S.Ct. at 1082. The district judge did not err

in denying Zielie’s counsel the opportunity of making an

opening statement.

¢The Supreme Court has limited the constitutional right to oral

argument to final argument or summation. They have stated that

“It]here is no constitutional right to oral argument at any stage

of the trial or appellate process.” Herring v. New York, 422 U.S.

853, 863 n. 13, 95 S.Ct. 2550, 2555 n. 13, 45 L.Ed.2d 593 (1974).

5In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.

1981) (en banc), this court adopted as binding precedent all of the

decisions of the former Fifth Circuit handed down prior to October

1, 1981.

App. 9

D. Zielie’s Other Motions

Zielie was charged in two counts of the indictment.

Count Seven charged that on or about January 13th and

14th, 1979, near Eustis, Florida, Zielie possessed mari-

juana with intent to distribute. Count Sixieen charged

Zielie with conspiracy to possess and distribute mari-

juana.® Zielie filed two separate motions in limine and a

motion for judgment of acquittal as to both counts. The:

district judge denied both motions in limine and granted

the motion for acquittal as to Count Sixteen, the conspiracy

count, but denied it as to Count Seven for possession with

intent to distribute. Zielie challenges the district court’s

rulings. Finding no error in these rulings, we affirm Zie-

lie’s conviction.

{9} On August 25, 1982, Ziclie filed a motion in limine

seeking to preclude all non-expert witnesses from identify-

ing as marijuana the brown-green, leafy material that he

was charged with possessing and distributing. He asserted

that none of the marijuana that he allegedly received and

distributed had ever been seen, seized or tested by quali-

fied law enforcement personnel or a qualified expert in the

field of botany or forensic chemistry; therefore, no testi-

mony identifying it as marijuana should be permitted. We

find the court properly allowed Diego Morales and Todd

* Appellants Govern and Wilkerson also challenge their convic-

tions on Count Sixteen arguing that the evidence introduced at

trial established a number of separate conspiracies but not the single

conspiracy charged in Count Sixteen. There is no merit to this

argument. The trial judge properly found that the multiple con-

spiracy issue was an issue of fact to be resolved by the jury. United

States v. Lee, 695 F.2d 515 (11th Cir. 1983). It submitted it to

the jury with an appropriate instruction. R. Vol. XXXVITII at

4745-46.

App. 10

Reynolds, two experienced marijuana dealers, to testify

that the substance given to Zielie on or about January

13-14, 1979, was marijuana.

[10,11] The law is quite clear that the introduction

of a chemical analysis of the substance is not essential to

conviction. United States v. Graham, 464 F.2d 1073 (Sth

Cir. 1972). The uncorroborated testimony of a person

who observed a defendant in possession of a controlled

substance is sufficient if the person is familiar with the

substance at issue. See, e.g., United States v. Crisp, 563

F.2d 1242, 1244 (5th Cir. 1977); United States v. Quesada,

512 F.2d 1043, 1045 (Sth Cir.), cert. denied, 423 U.S.

946, 96 S.Ct. 356, 46 L.Ed.2d 277 (1975). The narcotic

nature of the substance need not be proved by direct evi-

dence if the circumstantial evidence presented established,

as it did here, that beyond a reasonable doubt the sub-

stance was marijuana. See, e.g., United States v. Gregorio,

497 F.2d 1253, 1263 (4th Cir. 1974) ; United States v. Jones,

480 F.2d 954, 960 n.4 (Sth Cir. 1973), cert. denied sub nom.,

Stockmar v. United States, 414 U.S. 1071, 94 S.Ct. 582, 38

L.Ed.2d 476 (1974). The distriet judge properly denied

this motion im limine.

[12] Zielie also filed another motion im limine to ex-

clude all evidence which related to drug transactions be-

tween him and government witness Morales that were dis-

tinct and separate from the transaction involved in Count

Seven. The district judge properly denied the motion and

admitted the evidence of the uncharged transactions. lt

does not matter that these other transactions were not

alleged as overt acts in the indictment. Courts have con-

sistently held that ‘‘the government is not limited to

overt acts pleaded in proving a conspiracy. It may show

other acts of the conspirators occurring during the life of

the conspiracy.’’ United States v. Perez, 489 F.2d 51, 70

App. 11

(5th Cir.), cert. denied, 417 U.S. 945, 94 S.Ct. 3067, 41

L.Ed.2d 664 (1973). Accord, United States v. Ayres, 434

F.2d 60 (5th Cir. 1970), cert. denied sub nom., Sidney v.

United States, 401 U.S. 938, 91 S.Ct. 930, 28 L.Ed.2d 217

(1971). In this case, because the evidence of the other

transactions was offered to prove the conspiracy charged

in Count Sixteen, its admission was proper.

[13] At the close of the government’s case-in-chief

Zielie moved for acquittal on Counts Seven and Sixteen.

The motion was granted for Count Sixteen, the conspiracy

charge, but denied for Count Seven, the substantive charge

of possession of marijuana with intent to distribute. Zielie

argues that his acquittal on the conspiracy count neces-

sarily must result in his acquittal on the substantive covnt.

This argument is clearly wrong since it is not inconsistent

for a court to acquit a defendant on a conspiracy count

while convicting him on a substantive count. See, e.g..

United States v. Palmiotto, 347 F.2d 223 (2d Cir. 1965) ;

United States v. Wilson, 342 F.2d 43 (2d Cir. 1965). The

jury’s verdict on Count Seven was supported by substantial

evidence. United States v. Malatesta, 590 F.2d 1379 (5th

Cir.), (en banc), cert. denied, 440 U.S. 962, 99 S.Ct. 1508,

59 L.Ed.2d 777 (1979). The district judge properly ruled

on these three motions.

lil. ROBERT WALTER GOVERN’S CLAIMS‘

A. Statements of Co-Conspirators

Govern challenges the admissibility at trial of out of

court statements made by co-conspirators. In advancing

this claim Govern argues that the district court erred in

both the conduct of the James hearing and in the applica-

*Govern also challenged several evidentiary rulings of the trial

court and asserted that the government’s prosecution of this case

violated his due process rights. We find these issues do not warrant

discussion.

App. 12

tion of the ‘‘in furtherance of the conspiracy’’ require-

ment of Federal Rule of Kvidence 801(d)(2)(E). We

disagree.

[14,15] Rule 801(d)(2)(l) provides that a statement

is not hearsay if it is offered against a party and is made

‘*by a co-conspirator of a party during the course and in

furtherance of the conspiracy.’’ Such statements are ad-

missible, however, only if the government presents sub-

stantial, independent evidence showing: (1) that a con-

spiracy existed, (2) that the defendant and declarant were

both members of the conspiracy, and (3) that the state-

ment was made during the course of and in furtherance

of the conspiracy. United States v. James, 590 ¥.2d 575,

581 (5th Cir.) (en banc), cert. denied, 442 U.S. 917, 99

S.Ct. 2836, 61 L.Ed.2d 283 (1979). Accord, United States

v. Yonn, 702 F.2d 1341 (11th Cir. 1983). The trial court’s

finding is a factual determination, United States v. Perry,

624 F.2d 29, 30 (Sth Cir. 1980), subject to review under the

clearly erroneous standard. United States v. Bulman,

667 F.2d 1374, 1379 (11th Cir.), cert. denied, 456 U.S. 1010,

102 S.Ct. 2305, 73 L.Ed.2d 1307 (1982).

[16] The court in this case held a James hearing. The

judge allowed the prosecution to present hearsay testimony.

Govern asserts that the government cannot prove the con-

spiracy at a James hearing through any kind of hearsay.

A reading of James clearly discloses the error in appel-

lant’s argument. ‘The threshold determination concerning

the admissibility of co-conspirator statements is made pur-

suant to Fed.R.Evid. 104(a). This rule provides that the

court ‘‘is not bound by the Rules of Evidence except those

with respect to privileges.’’ Fed.R.Evid. 104(a). Thus

hearsay statements are admissible at the James hearing

with one caveat—the court may not ‘‘rely upon the content

of the very statement whose admissibility is at issue.’’

United States v. Jumes, 590 F.2d at 581. Thus, independent

App. 13

evidence, separate from the hearsay statements, must dem-

onstrate the existence of a conspiracy.

[17,18] There is extensive independent evidence in this

record which sustains the district court’s finding of a

conspiracy. In reviewing a James hearing we may also

consider, only against the particular defendant-declarant.

the statements that he himself made to others. A defen-

dant’s own statements are admissible against him as party

admissions under Fed.R.Evid. 801(d)(2)(A). United

States v. Hewitt, 663 F.2d 1381, 1388 (11th Cir. 1981).

Thus, a defendant’s own statements constitute independent

evidence for the purpose of applying the James standards

as to that particular defendant. Most of the evidence at

the James hearing in this case was testimony by Diego

Morales and John Patterson as to conversations with nu-

merous people, including appellant Govern. The state-

ments made by Govern in furtherance of the conspiracy

were properly admissible against him.

B. Sufficiency of the Evidence

Govern argues that the evidence adduced at trial was in-

sufficient to support his convictions on Counts One through

Six, Eight, Twelve, Seventeen and EKighteen and the dis-

trict court erred in denying his motion for judgment of

acquittal. After a careful review of the record we affirm

the convictions of appellant Govern except for Count

Twelve.

[19] Challenges to the sufficiency of the evidence are

measured by the standard set out in United States v. Bell,

678 F.2d 547 (5th Cir. Unit B) (en banc), aff’d on other

grounds, ........ RE veins , 103 §.Ct. 2398, 76 L.Ed.2d 638

(1983). The court in Bell stated that:

*’ The Eleventh Circuit has adopted as binding precedent deci-

sions of Unit B of the former Fifth Circuit. Stein v. Reynolds

Securities, Inc., 667 F.2d 33, 34 (11th Cir. 1982).

App. 14

It is not necesary that the evidence exclude every

reasonable hypothesis of innocence or be wholly in-

consistent with every conclusion except that of guilt,

provided that a reasonable trier of fact could find that

the evidence established guilt beyond a reasonable

doubt. A jury is free to choose among reasonable con-

structions of the evidence.

Id. at 549.

We must view the evidence in the light most favorable to

the government, Glasser v. United States, 315 U.S. 60, 62

S.Ct. 457, 86 L.Ed. 680 (1942), and accept all reasonable

inferences and credibility choices by the fact-finder, United

States v. Gonzalez, 719 F.2d 1516, 1521-22 (11th Cir. 1983).

After a careful review of the record we find the evidence

presented was clearly sufficient to meet the government’s

burden and we affirm Govern’s suiisitiain on all Counts,

except Count Twelve.? Count Twelve charged defendant

Govern with possession of marijuana with intent to dis-

tribute near Eustis, Florida, during November, 1980. The

evidence introduced at trial showed that Govern was in-

volved with distribution of marijuana in South Florida

but not near Eustis. R.Vol. XXIV at 1695-96. Govern’s

conviction as to Count Twelve is reversed and his sentence

as to this count is vacated.

C. Criminal Forfeiture

Count Two of the Indictment alleged that several par-

cels of real property, owned in whole or in part by Gov-

ern, afforded him a source of influence over the racketeer-

ing enterprise described in Count Two. These parcels

were, therefore, subject to forfeiture pursuant to 18 U.S.C.

9 Governmient’s counsel conceded this point to the court at oral

argument.

App. 15

§ 1963(a)(2) (1980). Govern’s mansion, the Loxahatchee

house and the Holatee Trail house were forfeited to the

United States pursuant to the jury’s verdict. Govern now

challenges these forfeitures.

Under 18 U.S.C. § 1963(a) (1976), a defendant who

violates any provision of Section 1962... shall forfeit

to the United States (1) any interest he has acquired or

maintained in violation of Section 1962, and (2) any

interests in, security of, claim against, or property or

contractual right of any kind affording a source of

influence over, any enterprise which he has established,

operated, controlled, conducted, or participated in the

conduct of, in violation of Section 1962.

In order to have a violation of Section 1962 there must be

(1) an enterprise which affects interstate or foreign com-

merce, (2) a defendant associated with the enterprise, (3)

who participated in the conduct of the enterprise’s affairs

(4) through a pattern of racketeering activity. United

States v. Bright, 630 F.2d 804, 829 (5th Cir. 1980). Appel-

lant asserts that there was no ‘‘legal entity’’ that consti-

tuted an enterprise and therefore the property should not

have been forfeited to the government. We disagree.

In United States v. Martino, 681 F.2d 9&2 (Sth Cir. 1982)

(en banc), the court carefully set forth the legislative his-

tory of the Organized Crime Control! Act of 1970 and con-

cluded that ‘‘Congress’ express objective in RICO is to

take the profit out of organized crime.’’ Id. at 957 (foot-

note omitted). Congress mandated that ‘‘[t]he provisions

of [RICO] shall be liberally construed to effectuate its re-

media) purposes.’’ Organized Crime Control Act of 1970,

Pub.L. No. 91-452, § 904(a), 84 Stat. 947 (1970). Based on

its careful analysis of the legislative history and faced with

a RICO enterprise that was ‘‘an association in fact rather

than a legal entity,’’ id. at 958, the court concluded that

‘‘reading an enterprise limitation into $ 1963(a)(1) ren-

ders that section surplusage.’’ /d. at 955, Cf. United States

App. 16

v. Cagnina, 697 F.2d 915 (11th Cir. 1983, cert. denied,

U.S. ——, 104 S.Ct. 175, 78 L.Ed.2d 157 (1983) (enterprise

can include informal criminal network engaged in racke-

teering activity.)

[20,21] Properties that are owned by a RICO partici-

pant and used by him to further the affairs of a RICO en-

terprise afford the owner/participant a source of influence

over the enterprise and are thus subject to forfeiture under

18 U.S.C. § 1963(a)(2). The evidence in this case showed

that Govern bought these properties during years when he

had little reported income. These parcels were used al-

most exclusively as stash or money-counting houses. They

clearly were Govern’s contribution to the enterprise de-

scribed in Count Two and properly forfeited to the United

States.

IV. DOUBLE JEOPARDY CLAIM

[221 The original trial in this case began on August 16,

1982, in Ocala, Florida. The government started its case

by calling various persons who testified as custodian of

record or chain of custody witnesses. Several witnesses

identified documentary evidence. The government’s first

fact witness was Diego Morales, a marijuana dealer. After

many hours on the stand the prosecutor asked him on re-

direct who had accompanied him on a particular trip to one

of the marijuana farms. He answered, ‘‘ Leonel Fernandez.

They killed him, can’t testify.’’ R.Vol. LI at 208. Immedi-

ately, all of the defendants moved for a mistrial which was

granted by the district judge. Prior to the second trial all

of the defendants moved for dismissal of the indictment

on double jeopardy grounds. The district judge denied the

motions which he characterized as ‘‘frivolous.’’ R.Vol. X

at 507-508. All of the appellants once more assert that the

indictments against them should be dismissed on double

jeopardy grounds. We affirm the district court’s ruling.

2 Oe eel eae ABIL Pe Nee BR

App. 17

[23, 24] The Double Jeopardy Clause of the Fifth

Amendment protects a criminal defendant from repeated

prosecutions for the same offense. United States v. Din-

itz, 424 U.S. 600, 606, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267

(1976). Where the trial is terminated over the objection

of the defendant the test for lifting the double jeopardy bar

to a second trial is the ‘‘manifest necessity’’ test first set

vut by the Supreme Court in United States v. Perez, 9

Wheat. 579, 580, 6 L.Ed. 165 (1824). The usual situation

meeting this standard is the hung jury. But in the case of

a mistrial declared at the request of a defendant, ‘‘there

is a narrow exception to the rule that the Double Jeopardy

Clause is no bar to retrial.’’ Oregon v. Kennedy, 456 U.S.

667, 673, 102 S.Ct. 2083, 2088, 72 L.Ed.2d 416 (1982) (ci-

tations omitted).

[25] <A defendant’s motion for a mistrial constitutes

‘‘a deliberate election on his part to forego his valued right

to have his guilt or innocence determined before the first

trier of fact.’’ United States v. Scott, 437 U.S. 82, 93, 98

S.Ct. 2187, 2195, 57 L.Ed.2d 65 (1978). If prosecutorial er-

ror has occurred which warrants a mistrial, ‘‘[t]he import-

ant consideration, for purposes of the Double Jeopardy

Clause, is that the defendant retain primary control over

the course to he followed in the event of such error.’’ United

States v. Dinitz, 424 U.S. at 609, 96 S.Ct. at 1080. Thus,

only in ‘‘those cases in which the conduct giving rise to

the suecessful motion for a mistrial was intended to pro-

voke the defendant into moving for a mistrial,’’ Oregon

v. Kennedy, 456 U.S. at 679, 102 S.Ct. at 2091, can the

Double Jeopardy Clause bar the second trial.

Nowhere in this record can we find that the prosecutor

‘intended to cause a mistrial and subvert the protection af-

forded to these defendants by the Double Jeopardy Clause.

App. 18

The government gained no advantage by the mistrial since

the evidence adduced at the second trial was the same as

that used in the first trial. See Arizona v. Washington,

434 U.S. 497, 508, 98 S.Ct. 824, 831, 54 L.Ed.2d 717 (1978) ;

United States v. Opager, 616 F.2d 231, 234 (5th Cir.1980).

Nothing in this case indicates the level of conduct neces-

sary for a finding of prosecutorial overreaching. Compare

United States v. Kessler, 530 F.2d 1246 (5th Cir.1976) with

United States v. Broderick, 425 F.Supp. 93 (S.D.Fla.1977).

But cf. United States v. Garza, 603 F.2d 578 (5th Cir.1979).

We find appellants’ double jeopardy argument to be with-

out merit.

V. COMMUNICATION WITH JURY

[26, 27] On November 8, 1982, after receiving its in-

structions, the jury retired to deliberate. Shortly there-

after, the jury sent a note to the court which stated: ‘‘ May

we please have a copy of the transcript?’’ Vol. XX XVIII

at 4774. The court, without discussing it with any counsel

sent a note back which read: ‘‘Transcripts are not normally

prepared during a trial, have not been prepared in this

case; you must follow your collective recollection of the

evidence.’’ Id. Appellant Gustafson now alleges that this

communication with the jury, without prior consultation

with the defendant and his attorney denied Gustafson his

right to be present at every stage of his trial. We disagree.

In Rogers v. United States, 422 U.S. 35, 38, 95 S.Ct.

2091, 2094, 45 L.Ed.2d 1 (1975), the Supreme Court stated

the rule which governs this incident:

in Fillippon v. Albion Vem Slate Co., 250 U.S. 76 [39

S.Ct. 435, 63 L.Ed. 853] (1919), the Court observed

‘‘that the orderly conduct of a trial by jury essential

to the proper protection of the right to be heard, en-

titles the parties who attend for the purpose to be

present in person or by counsel at all proceedings from

App. 19

the time the jury is impaneled until it is discharged

after rendering the verdict.’’®

However, the Rogers opinion clearly indicated that in some

circumstances the error can be harmless. Rogers v. United

States, 422 U.S. at 40, 95 S.Ct. at 2095. This is such a case.

Gustafson has not shown in what manner he was preju-

diced. The district court’s action was purely ministerial,

advising the jury that no transcript was available. He

has not challenged the accuracy of the district court’s an-

swer, nor could he. We by no means approve of any un-

justified jury-court communication without notifying all

counsel. But when the judge’s answer to the jury’s in-

quiry is distinctly responsive to the question; clearly states

the law; and no prejudice is shown, the error is harmless.

United States v. McDuffie, 542 ''2d 236, 241 (5th Cir.

1976).

VI. PROSECUTION’S CLOSING ARGUMENT

|28, 29] Appellants Govern and Gustafson assert that

the prosecutor, during rebuttal, made two separate com-

ments which denied them a fair trial. These comments

were:

And if you want to show sympathy don’t show it to

Mr. Govern because we’re picking on him. Show it

to people who have suffered the effects of millions of

pounds of marijuana. These are the people that need

your sympathy.

R.Vol. XXXVII at 4718.

These people are on trial, and Mr. Govern deserves

to be found guilty for everything he did and I’m here

to do justice, ves, sir, | am, and I’m also here, contrary

'’ This principle is also embodied in F.R.Crim.P. 43 which af-

fords the defendant the right to be present at all stages of the trial,

from arraignment to the return of the verdict.

App. 20

to what Mr. Wilson said, to win. And the reason

I want to win with respect to Mr. Govern, because

if I win that’s justice.

R.Vol. XX XVII at 4714.

The test for determining the existence of prosecutorial mis-

conduct is whether the remarks were improper and preju-

dicially affected substantial rights of the defendants.

United States v. Phillips, 664 F.2d 971, 1030 (5th Cir.1981)

(Unit B), cert. denied, sub nom. Meinster v. United States,

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

United States v. Dorr, 636 F.2d 117, 120 (5th Cir.1981).

In this case, the two remarks were neither improper nor

of such a nature that they affected substantial rights of the

defendants. Reference during closing argument to the

drug problems of society and defendants’ roles in such

problems are not unduly prejudicial or excessively in-

flammatory. See, ¢.g., United States v. Metz, 608 F.2d 147,

158 (5th Cir.1979). The second comment falls safely on

the legal side of the line between improper expression of

the prosecutor’s opinion and appropriate conclusions to

be drawn from the evidence. See United States v. Siegel,

587 F.2d 721, 727 (5th Cir.1979). These remarks did not

prejudicially affect substantial rights of the appellants

and thus do not constitute reversible error.

VII. REMARKS MADE BY MAUSSER’S COUNSEL

|30] During closing argument counsel for defendant

Mausser made the following comment to the jury:

And he, the evidence we’ve proven, he’s an honest

and trustworthy man. He’s one of the few who’s tes-

tified. He stood up there and the prosecution worked

him over. He was on that stand for a whole after-

noon to defend his name.

R.Vol. XXXVIT at 4639.

App. 21

Counsel for codefendant Gustafson, joined by counsel for

codefendant Wilkerson, made a motion for mistrial, as-

serting that it was an impermissible comment upon their

client’s failure to testify. Counsel for Mausser apolo-

gized for his remark by stating:

Your honor, I was trying to bring out a point there and

I guess—it was about the quantity of witnesses over

quality, and I didn’t even realize what I said and I

didn’t know even know about it till afterwards, and I

certainly respectfully say to the Court and to all the

other defendants and lawyers and the prosecutor, that

I did not mean it that way and I had no intention ever

to go in that area.

R.Vol. XXXVII at 4642.

The court, thereafter, denied the motion because it conclud-

ed that any reference to the codefendants’ failure to tes-

tify was unintentional and of such a character that the

jury would not necessarily take it to be a comment on the

codefendants’ failure to testify. R.Vol. XXXVII at 4646-

+647. The district judge applied the proper standard and

we affirm his denial of the motion for a mistrial.

[31] There is no doubt that this circuit has a clearly

established rule that convictions can be overturned where

a comment on a defendant’s exercise of his right to remain

silent impairs the integrity of that right. This is true

whether the comment is made by the prosecutor or by coun-

sel for a codefendant. See, United States v. Aguiar, 610

F.2d 1296, 1302 (5th Cir. 1980), cert. denied, 449 U.S. 827,

101 S.Ct. 91, 66 L.Ed.2d 31 (1981); United States v. Kap-

lan, 576 F.2d 598, 600 (Sth Cir.1978), cert. denied, 439 U.S.

1078, 99 S.Ct. 858, 59 L.Ed.2d 47 (1979). However, not

every statement is a comment on silence.

App. 22

{32] The standard for determining if there has been

an impermissible comment upon a defendant’s right not

to testify at trial is ‘‘whether the statement was manifestly

intended or was of such a character that a jury would nat-

urally and necessarily take it to be a comment on the fail-

ure of an accused to testify.”’ United States v. Dearden,

046 F.2d 622, 625 (Sth Cir.), cert. denied, 434 U.S. 902, 98

S.Ct. 295, 54 L.Ed.2d 188 (1977); United States v. Vera,

701 F.2d 1349, 1362 (11th Cir.1983). In applying this test,

the court must ‘‘look to the context in which the statement

was made in order to determine the manifest intention

which prompted it and its natural and necessary impact

upon the jury.’’ United States v. Forrest, 620 F.2d 446,

455 (Sth Cir.1980), quoting Samuels v. United States, 398

F.2d 964, 967 (Sth Cir.), cert. denied, 393 U.S. 1021, 89

S.Ct. 630, 21 L.Ed.2d 566 (1969).

Applying the appropriate standards to the statement

in this case it is clear that it was not manifestly intended,

nor would a ‘jury rationally and necessarily construe it to

be, a comment on silence. The statement was an attempt

to bolster Mausser’s testimony and to enhance his credibil-

ity. See United States v. Macker, 608 F.2d 223, 226-27 (Sth

Cir. 1979). The Fifth Cireuit has stated that:

A mere favorable comment upon the fact that one of

several co-defendants testified does not involve the

same potential for prejudice as an adverse comment

by counsel upon the failure to testify of the other co-

defendant.

United States v. Hodges, 502 F.2d 586, 587 (5th Cir.1974).

The statement at issue here is a favorable comment on the

fact that Mausser testified and not an adverse comment

on Gustafson’s or Wilkerson’s failure to testify.

;

App. 23

VIII. RICO CONVICTIONS

[33-35] Appellants Govern, Gustafson and Wilkerson

challenge the district’s court’s denial of their motions for

judgment of acquittal."’ | They claim that there was in-

sufficient evidence at trial to support convictions under 18

U.S.C. $$ 1962(c) and (d) (1976) (‘*RICO*’). Specifical-

'! Gustafson and Govern also challenged the denial of the mo-

tions for judgment of acquittal on the RICO charges on two other

grounds. First, they argue that marijuana is not a dangerous drug

as that term is used in 18 U.S.C. § 1961(1) (1976). This argu-

ment has been made to this court before and rejected. See, e.g.,

United States v. Phillips, 664 F.2d 971, 1040 (Sth Cir. 1981) (Unit

B), cert. denied sub nom, Meinster v. United States, 457 U.S. 1136,

102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982). Secondly, appellant

Govern asserts that the application of the RICO statute to this

case is improper because the only acts of racketeering alleged in

the indictment were possession and distribution of marijuana and

interstate travel to promote the same. Again, the argument is with-

out merit since 18 U.S.C. § 1961(1) states that trafficking in dan-

gerous drugs is a racketeering activity. 18 U.S.C. § 1962(c) states

that a RICO violation will lie when a person participates in or

conducts a RUCO enterprise's affairs through a pattern of racketeer-

ing. Therefore, once an enterprise has been established two Title 21

drug offenses would be sufficient to sustain a conviction under

RICO.

18 U.S.C. § 1962(c) provides:

It shall be unlawful for any person employed by or associated

with any enterprise engaged in, or the activities of which affect,

interstate or foreign commerce, to conduct or participate, di-

rectly or indirectly, in the conduct of such enterprise’s affairs

through a pattern of racketeering activity or collection of un-

lawful debt.

18 U.S.C. § 1962(d) makes it unlawful for any person to conspire

to violate § 1962(c). The statute provides that “ ‘enterprise’ in-

cludes any individual, partnership, corporation, association, or other

legal entity, and any union or group of individuals associated in

fact although not a legal entity.” 18 U.S.C. § 1961(4). A “pattern

(footnote continued)

App. 24

ly they argue that the government failed to establish the

existence of an ‘‘enterprise,’’ within the meaning of the

RICO statute, separate and apart from the underlying

pattern of racketeering activity. Both the law and the

facts of this case defeat their argument.

In United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524,

69 L.Ed.2d 246 (1981), the Supreme Court held that a

RICO enterprise could be engaged solely in illegitimate

activity without fusing the enterprise with the pattern of

racketeering activity. In reaching its decision the Court

discussed the elements of RICO and the meaning of the

word ‘‘enterprise’’ under the statute. It stated:

That a wholly criminal enterprise comes within the

ambit of the statute does not mean that a ‘pattern of

racketeering activity’ is an ‘enterprise.’ In order to

secure a conviction under RICO, the Government must

prove both the existence of an ‘enterprise’ and the con-

nected ‘pattern of racketeering activity.’ The enter-

prise is an entity, for present purposes a group of

persons associated together for a common purpose of

engaging in a course of conduct. The pattern of rack-

eteering activity is, on the other hand, a series of erim-

inal acts as defined by the statute [citation omitted].

The former is proved by evidence of an ongoing organ-

ization, formal or informal, and by evidence that the

various associates function as a continuing unit. The

(footnote continued )

of racketeering activity’’ requires at least two acts of “racketeering

activity” committed within ten years of each other. 18 U.S.C. § 1961

(5). “Racketeering activity’ includes three broad categories of

crimes: (a) any of several specified “act[s] or threat[s] .. .

chargeable under State law and punishable by imprisonment for

more than one year”, including, as relevant here, murder, attempted

murder, arson, extortion, and dealing in narcotics, (b) any act

which is indictable under any of several specified sections of 18

U.S.C., including § 472 (issuing counterfeit securities) and § 659

(felonious theft from interstate shipment), and (c) federal offenses

involving narcotics or other dangerous drugs.

App. 25

latter is proved by evidence of the requisite number

of acts of racketeering committed by the participants

in the enterprise. While the proof used to establish

these separate elements may in particular cases coa-

lesce, proof of one does not necessarily establish the

other.

452 U.S. at 583, 101 S.Ct. at 2528.

(36, 37) Thus, in order to prove a substantive RICO

violation the government must prove both an enterprise

and a pattern of racketeering activity. United States v.

Cagnina, 697 F.2d 915 (11th Cir. 1983), cert. denied,

U.S. , 104 S.Ct. 175, 78 L.Ed.2d 157 (1983). A pattern

of racketeering activity alone is not a crime under RICO.

The gravamen of a RICO offense is conducting an enter-

prise through a pattern of racketeering activity. United

States v. Elliott, 571 F.2d 880 (Sth Cir.), cert. denied, 439

U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 (1978). This circuit

has interpreted ‘‘enterprise’’ to mean ‘‘an informal crim-

inal network engaged in racketeering activity .. .’’ United

States v. Cagnina, 697 F.2d at 920. An enterprise need not

he a ‘duly formed corporation that elects officers and hold

annual meetings ...’’ United States v. Elliott, 571 F.2d

at 898. It can be a loose and informal ‘‘amoeba-like infra-

structure that controls a secret criminal network .. .’’ 7d.

The precedent in this cireuit clearly indicates that ‘‘a

RICO enterprise exists where a group of persons associate,

formally or informally, with the purpose of conducting

illegal activity.’’ United States v. Hewes, 729 %.2d 1302

at 1311 (11th Cir. 1984).

138] There was sufficient evidence in this case for the

jury to find a RiCO ‘‘enterprise’’ as that term has been

interpreted by the Supreme Court and this circuit. The

indictment in this case alleged that there was an enterprise

consisting of a group of individuals associated in fact for

the purpose of distributing marijuana. The evidence clearly

App. 26

showed that Govern would buy marijuana and redistribute

it through the organization that he headed. This distribu-

tion group was an ongoing organization, possessing a well-

defined structure, with continuity of membership and pur-

pose. R.Vol. XXV at 1936. Testimony at trial showed a

structure with extensive records. R.Vol. XXVII at 2567-

68. There were fixed salaries, R.Vol. XXVII at 2563, and

fixed hours of operation. R.Vol. XXVII at 2453. The evi-

dei -e clearly indicated that appellants were member~ of

a group of individuals associated in fact for the pi-rpose

of making money through a coordinated and connected ser-

ies of marijuana transactions. Such evidence was suffi-

cient to establish an enterprise under 18 U.S.C. § 1962(c)

and (d).

IX. MOTIONS TO SEVER

[39] Appellants Gustafson, Mausser and Wilkerson as-

sert that the trial court erred in denying their respective

motions to sever. All three claim error on the part of the

trial court for its failure to sever Counts Seventeen and

Eighteen, the money laundering counts, from the rest of

the Indictment. Appellants Mausser and Wilkerson also

claim that they should have been tried separately from all

other codefendants in light of the small amount of evidence

introduced against them versus the vast amounts intro-

duced against all other codefendants. Since the appel-

lants have not shown that they suffered any compelling

prejudice as a result of the joint trial we affirm the dis-

trict court’s denial of the motions to sever.

[40] It is well settled that joinder under Rule 8(b)}8

is proper where an indictment charges multiple defendants

with participation in a single conspiracy and also charges

138 Fed.R.Crim.P. 8(b) provides in pertinent part:

Two or more deiendants may be charged in the same indict-

ment or information if they are alleged to have participated in

the same act or transaction or in the same series of acts or

transactions constituting an offense or offenses.

sanaatrnsiisiaanantetimspemnabtnssueians Manenetie’, Wanetill

oe se ns tha

App. 27

some but not all of the defendants with substantive counts

arising out of the conspiracy. United States v. Weinrich,

586 F.2d 481, 495 (5th Cir.1978), cert. denied, 441 U.S. 927,

99 S.Ct. 2041, 60 L.Ed.2d 402 (1979). The Fifth Circuit

has stated as policy that ‘‘Rule 8 is to be broadly con-

strued in faver of initial joinder.’’ United States v. Park,

531 F.2d 754, 761 (Sth Cir. 1976).

[41-44] Yet, even if initial joinder is proper, sever-

ance may be granted in the discretion of the trial court un-

der Rule 14" if the district court determines prejudice will

result from the joinder. United States v. Walker, 720 F.2d

at 1533; United States v. Berkowitz, 662 F.2d 1127 (5th

Cir.1981) (Unit B). In deciding a Rule 14 motion for sev-

erance the trial court must balance the right of a defen-

dant to a fair trial against the public’s interest in efficient

and economic administration of justice. United States v.

Walker, 720 F.2d 1527 (11th Cir. 1983); United States v.

Morrow, 537 F.2d 120, 136 (Sth Cir.1976), cert. denied, 430

U.S. 956, 97 S.Ct. 1602, 51 L.Ed.2d 806 (1977). Severance

will be granted only if a defendant can demonstrate that

a joint trial will result in specific and compelling prejudice

to the conduct of his defense. United States v. Marzalkow-

ski, 669 F.2d 655, 660 (11th Cir.), cert. denied, sub nom.,

Brock v. United States, 459 U.S. 906, 103 S.Ct. 208-09, 74

L.Ed.2d 167 (1982). Appellate courts are reluctant to

second guess a trial court’s refusal to grant a severance.

14 Fed.R.Crim.P. 14 provides in pertinent part:

If it appears that a defendant or the government is prejudiced

by a joinder of offenses or of defendants in an indictment or

information or by such joinder for trial together, the court

inay order an election or separate trial of counts, grant a sever-

ance of defendants or provide whatever other relief justice

requires.

App. 28

United States v. Horton, 646 F.2d 181, 186 (5th Cir.i981).

Therefore, our review is limited to determining if there

was an abuse of discretion. United States v. Plotke, 725

F.2d 1303, 1309 (11th Cir.1984).

145, 46) In order to demonstrate an abuse of discre-

tion, ‘‘the defendant must establish that the joint trial

subjected him not just to some prejudice, but to com-

pelling prejudice against which the district court could

not afford protection.’’ United States v. Harper, 680 F.2d

731, 733 (11th Cir.), cert. denied, 459 U.S. 916, 103 S.Ct.

229, 74 L.Ed.2d 182 (1982). In determining prejudice we

must consider whether the jury could ‘‘individualize each

defendant in his relation to the mass,’’ Kotteakos v.

United States, 328 U.S. 750, 773, 66 S.Ct. 1239, 1252,

90 L.Ed. 1557 (1946), i.e., whether the jury could ‘‘keep

separate the evidence that is relevant to each defendant,

and render a fair and impartial verdict as to him? If

so, though the task is difficult, severance should not be

granted.’’ United States v. Lane, 584 F.2d 60, 64 (5th

Cir.1978), quoting Tillman v. United States, 406 F.2d 930,

935 (5th Cir.), vacated in part, 395 U.S. 830, 89 S.Ct. 2143,

23 L.Ed.2d 742 (1969). A defendant does not suffer com-

pelling prejudice simply because much of the evidence at

trial is applicable only to his codefendants. United States

v. Berkowitz, 662 F.2d at 1135 n. 8. Nothing in this record

demonstrates compelling prejudice and the denials of the

motions for severance were not an abuse of discretion.

The convictions and sentences imposed on appellants

Zielie, Gustafson, Wilkerson and Mausser are AF-

FIRMED. The convictions of appellant Govern are AF-

FIRMED except for Count Twelve which is dismissed and

the sentence on this Count is VACATED.

App. 29

APPENDIX 2

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 82-3167

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

versus

CHAN WALKER ZIELIE,

KEITH H. GUSTAFSON,

THOMAS DAVID WILKERSON,

ROBERT WALTER GOVERN,

and LEON D. MAUSSER,

Defendants-Appellants.

Appeal from the United States District Court for the

Middle District of Florida

ON PETITION FOR REHEARING AND SUGGESTION

FOR REHEARING EN BANC

(Opinion June 25, 1984, 11 Cir., 198...., ........ 2 Gaaewe )

(July 30, 1984)

Before FAY, VANCE and HATCHETT, Circuit Judges.

PER CURIAM:

(~) The Petition of Keith H. Gustafson for Rehearing

is DENIED and no member of this panel nor other Judge

in regular active service on the Court having requested

App. 30

that the Court be polled on rehearing en banc (Rule 38,

Federal Rules of Appellate Procedure; Eleventh Circuit

Rule 26), the Suggestion for Rehearing En Banc is

DENIED.

( ) The Petition of Keith H. Gustafson for Rehear-

ing is DENIED and the Court having been polled at the

request of one of the members of the Court ard a majority

of the Circuit Judges who are in regular active service

not having voted in favor of it (Rule 35, Federal Rules

of Appellate Procedure; Eleventh Circuit Rule 26), the

Suggestion for Rehearing En Banc is also DENIED.

{ ) A member of the Court in active service having re-

quested a poll on the reconsideration of this cause en banc,

and a majority of the judges in active service not having

voted in favor of it, rehearing en banc is DENIED.

ENTERED FOR THE COURT:

/s/ Peter Fay

United States Circuit Judge

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App. 31

APPENDIX 3

UNITED STATES of America,

Plaintiff-Appellee,

Samuel S. SMITH, Defendant-Appellant.

No. 78-1508

Summary Calendar.*

United States Court of Appeals, Fifth Circuit.

June 5, 1978.

Before RONEY, GEE and FAY, Circuit Judges.

PER CURIAM:

This appeal is taken from an order of the district court

denying appellant’s pretrial motion to dismiss the indict-

ment against him on double jeopardy grounds. We affirm.

Appellant, a former circuit judge in the State of Florida,

was convicted in April 1977 of conspiracy to distribute

marijuana (21 U.S.C.A. §$ 846) and possession of mari-

juana with intent to distribute (21 U.S.C.A. § 841(a)(1)).

His appeal is presently pending before this Court. In

November 1977 appellant was indicted, with others, for

conspiracy to conduct and participate in the affairs of

the Third Judicial Circuit of the State of Florida through

racketeering activity (18 U.S.C.A. § 1962(d)) and the sub-

stantive offense of racketeering (18 U.S.C.A. § 1962(c)).

[1] Prior to trial on the racketeering indictment, ap-

pellant unsuccessfully moved to dismiss the indictment on

double jeopardy grounds. The district court’s pretrial de-

nial of appellant’s motion falls within the ‘‘collateral

App. 32

order’’ exception to the final judgment rule first announced

in Cohen v. Beneficial Ind. Loan Corp., 337 U.S. 541, 69

S.Ct. 1221, 93 L.Ed. 1528 (1949), and is an appealable

‘*final decision’’ within the meaning of 28 U.S.C.A. § 1291.

Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52

L.Ed.2d 651 (1977).

[2] The double jeopardy clause provides three related

protections:

It protects against a second prosecution for the same

offense after acquittal. It protects against a second

prosecution for the same offense after conviction. And

it protects against multiple punishments for the same

offense.

United States v. Wilson, 420 U.S. 332, 343, 95 S.Ct. 1013,

102i, +6 t.id.2d 232 (1975), quoting North Carolina v.

Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656

(1969). Appellant seeks to invoke the second of these pro-

tections. In support of his double jeopardy claim, appel-

lant notes that of the 72 overt acts alleged in this indict-

ment, 5 relate to attempts to bribe or enlist the aid of

state officials in obtaining marijuana. Since these acts had

also been alleged to support his earlier marijuana con-

spiracy conviction, appellant argues that the pr@Sent pros-

ecution is for the ‘‘same offense’’ charged in his previous

marijuana trial.

[3] The classic test for determining whether two of-

fenses are ‘‘the same’’ for double jeopardy purposes was

announced in Blockburger v. United States, 284 U.S. 299,

52 S.Ct. 180, 76 L.Ed. 306 (1932). Blockburger requires

that each offense be examined to ascertain ‘‘whether each

provision requires proof of an additional fact which the

other does not.’’ ZJd. at 304, 52 S.Ct. at 182; Brown v.

Ohio, 432 U.S. 161, 168, 97 S.Ct. 2221, 53 L.Ed.2d 187

(1977) ; Jeffers v. United States, 432 U.S. 137, 151, 97 S.Ct.

bb ee

App. 33

2207, 53 L.Ed.2d 168 (1977). Under the Blockburger test,

also known as the ‘‘same evidence’’ rule, it is possible for

a single criminal act or conspiracy to give rise to multiple

separate offenses. See Gore v. United States, 357 U.S.

386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958) (defendant con-

victed and received consecutive prison terms for three

separate offenses arising out of single narcotics sale) ;

United States v. Houltin, 525 F.2d 943 (5th Cir. 1976)

(single conspiratorial agreement violated two specifie con-

spiracy statutes; defendant’s consecutive sentences af-

firmed), vacated on other grounds sub nom. Croucher v.

United States, 429 U.S. 1034, 97 S.Ct. 725, 50 L.Ed.2d 745

(1977). Application of the test focuses on the statutory

elements of the offenses charged. ‘‘If each requires proof

of a fact that the other does not, the Blockburger test is

satisfied, notwithstanding a substantial overlap in the

proof offered to establish the crimes.’’ Jannelli v. United

States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1294, 43

L.Ed.2d 616 (1975). A cursory examination of the of-

fenses involved here reveals that they are not the same.

[4] The instant indictment charges appellant with

violations of the Racketeer Influenced and Corrupt Oganiza-

tions Act (RICO), 18 U.S.C.A. §$§ 1961 et seg. Count Two

charged appellant with violation of § 1962(c), which makes

it unlawful ‘‘for ary person employed by or associated with

any enterprise engaged in, or the activities of which affect,

interstate or foreign commerce, to conduct or participate,

directly or indirectly, in the conduct of such enterprises’s

affairs through a pattern of racketeering activity or col-

lection of unlawful debt.’’ Count One charged appellant

and others with conspiring to violate § 1962(c), a violation

of § 1962(d). A ‘‘pattern’’ of racketeering activity is de-

fined under the Act as ‘‘at least two acts of racketeering

activity. . . .’’ 18 U.S.C.A. § 1961(5). ‘‘ Racketeering

activity’’ is defined to include particular listed crimes in-

App. 34

dictable under federal or state law and traditionally as-

sociated with organized crime. See 18 U.S.C.A. § 1961(1).

The RICO indictment in this case charges bribery of state

officials, which qualifies as a ‘‘racketeering activity’’ under

§ 1961(1)(A), and acts relating to obstruction of justice

and obstruction of a criminal investigation, which both

qualify as racketeering activity under § 1961(1)(B). Al-

though some of the bribery allegations relate to appellant's

alleged involvement with marijuana, the RICO indictment

does not allege the drug offenses as an independent

‘‘racketeering activity,’’ as it could have under § 1961(1)

(D).

Obviously, successful prosecution of the crimes charged

under RICO will require proof of several facts that need

not be proved under the marijuana offenses. To succeed

on the cubstantive RICO count, Count Two, the Government

must prove the existence of an ‘‘enterprise,’’ that the en-

terprise engages in or its activities affect interstate or

foreign commerce, and that appellant participated in the

enterprise’s affairs through at least two acts of bribery of

state officials, obstruction of justice, or obstruction of a

federal criminal investigation. The Government need not

prove any of these facts in order to secure a conviction

for possession of marijuana with intent to distribute under

21 U.S.C.A. § 841(a)(1).

To convict under the RICO conspiracy count, the Gov-

ernment must prove, in addition to the enterprise’s nexus

with interstate or foreign commerce, that appellant ‘‘ob-

jectively manifested an agreemnt to participate, directly

or indirectly, in the affairs of [the] enterprise through

the commission of two or more predicate crimes.’’ United

States v. Elliot, 571 F.2d 880 (5th Cir. 1978) (emphasis

in original). The RICO conspiracy offense and the mari-

juana conspiracy offense do share one common element:

oe sah at

App. 35

an agreement—the essence of the crime of conspiracy—

must be shown to secure a conviction under both statutes.

But the resemblance ends there.

Similarly, successful prosecution of the marijuana of-

fenses requires proof of an essential fact not required

for conviction under the RICO counts: marijuana involve-

ment. Clearly, the RICO offenses involved in this case

are not the same as the narcotics offenses for which appel-

lant was convicted in an earlier trial.

Nor can appellant avail himself of the ‘‘continuing of-

fense’’ rule recently applied in Brown vy. Ohio, 432 U.S.

161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). In Brown the

Supreme Court held that under Ohio law the crimes of

auto theft and joyriding are the same offense for double

jeopardy purposes. The Court rejected the contention

that defendant could nevertheless be subjected to successive

prosecutions for the crimes because the charges against him

focused on different parts of his 9-day joyride: ‘‘The

Double Jeopardy Clause is not such a fragile guarantee

that prosecutors can avoid its limitations by the simple

expedient of dividing a single crime into a series of tem-

poral or spatial units.’’ /d. at 169, 97 S.Ct. at 2227.

Here, we are not faced with a single criminal act that

occurs over a period of time. Indeed, the substantive of-

fenses charged in this case do not even involve the same

type of criminal activity. That appellant’s alleged mari-

juana transaction may have been conducted concurrently

with the alleged acts of bribery, obstruction of justice,

and obstruction of criminal investigations hardly renders

it a mere spatial unit in a single continuous offense.

Likewise, appellant’s reliance on Braverman vy. United

States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 (1942), is

App. 36

misplaced. In Braverman the Court dealt with a single

agreement to commit acts in violation of seven substantive

statutes. Defendants were charged with and convicted

of seven counts of conspiring to violate a separate and

distinct law. The Sitwreme Court held that defendants

could be punished for only one offense: ‘‘The single agree-

ment is the prohibited conspiracy, and however diverse its

objects, it violates but a single statute, § 37 of the Criminal

Code [now 18 U.S.C.A. § 371]. For such a violation, only

the single penalty prescribed by the statute can be im-

posed.’’ 7d. at 54, 63 S.Ct. at 102.

[5] Braverman is inapplicable to the instant case be-

cause, assuming the marijuana conspiracy is a part of the

larger ‘‘enterprise’’ conspiracy alleged under RICO, an

issue which cannot be resolved on the record before us, the

conspiracy alleged here violates two specific conspiracy

statutes. A single criminal conspiracy, no less than a

single criminal act, may constitute two or more separate

offenses, and Congress may choose to punish each offense

without offending the double jeopardy clause. See United

States v. Houltim, 525 F.2d 9438, 950-51 (Sth Cir. 1976).

As we concluded earlier, the marijuana conspiracy and the

RICO conspiracy, even if parts of a single larger conspir-

acy, are separate offenses; and by enacting both 21

U.S.C.A. § 846 and 18 U.S.C.A. § 1962(d), Congress clearly

intended to punish them separately.

The instant prosecution under RICO does not violate

appellant’s double jeopardy rights. Accordingly, the dis-

trict court did not err in denying appellant’s motion to

dismiss.

AFFIRMED.

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App. 37

APPENDIX 4

B. THE RICO STATUTE IS INAPPLICABLE TO

MARIJUANA OFFENSES.

Very simply stated, marijuana offenses are not proper-

ly within the ambit of the RICO statute because mari-

juana is neither a ‘‘narcotic’’ nor a ‘‘dangerous drug.”’

Title 18 U.S.C. §1961(1)(D) limits the scope of the stat-

ute to ‘‘any offense involving . . . the felonious manu-

facture, importation, receiving, concealment, buying, sell-

ing or otherwise dealing in narcotic or other dangerous

drugs.”’

The definition of narcotic drug is contained in 21 U.S.C.

$802(16). No mention is made of marijuana, which is de-

fined in $802(15). See United States v. Kiffer, 477 F.2d

349 (2nd Cir. 1973). Further, while there is no definition

of ‘‘dangerous drug’’ anywhere in the code, it is doubtful

that marijuana is sufficiently hazardous to be classified

as dangerous. See National Organization for Reform of

Marijuana Laws vy. Drug Enforcement Administration,

559 F.2d 735, 751 n.70 (D.C. Cir. 1977); President’s Ad-

visory Commission on Narcotic and Drug Abuse, Final

Report 35 (1963); President’s Commission on Law En-

forcement and Administration of Justice, the Challenge

of Crime ma Free Society, 214-216 (1967); Blakey, Ma-

terials on RICO: Criminal Overview, 1 Cornell Inst. on

Organized Crime, Techniques in the Investigation and

Prosecution of Organized Crime 24 (1980).

Further, the legislative history of the statute supports

the conclusion that it was the intention of Congress to

exempt marijuana offenses from its tentacles. See Tarlow:

RICO; The New Darling of the Prosecutor’s Nursery,

49 Fordham L. Rev. 165, 222-223 (1980).

(Brief of Platshorn at 34-35).

App. 38

APPENDIX 5

D. Platshorn’s contention that marijuana cannot be

the subject matter of a RICO conspiracy is frivolous. See

United States v. Smith, 574 F.2d 308 (5th Cir.), cert.

denied, 439 U.S. 931 (1978). His argument is premised

upon the long rejected view that marijuana should not be

classified as a dangerous drug. Platshorn’s argument

should be addressed to Congress, which has made the clas-

sification, rather than the courts. United States v. Erwin,

602 F.2d 1183, 1185 (Sth Cir. 1979), cert. denied, 444

U.S. 1071 (1980); United States v. Gramlich, 551 F.2d

1359, 1364 (5th Cir.), cert. denied, 434 U.S. 866 (1977);

United States v. Jones, 480 F.2d 954, 960 (5th Cir.), cert.

demed, 414 U.S. 1071 (1973).

(Brief of Government at 32-33).

App. 39

APPENDIX 6

C. Platshorn

Platshorn claims that marijuana offenses are not with-

in the ambit of RICO because marijuana is not a narcotic

or dangerous drug. Howev:2r, marijuana has been classi-

fied as a Schedule I controlled substance. See, e.g., United

States v. Erwin, 602 F.2d 1183, 1185 (5th Cir. 1979), cert.

denied, 444 U.S. 1071, 100 S.Ct. 1014, 62 L.Ed. 2d 752

(1980). Marjuana may be the subject matter of a RICO

charge. See United States v. Smith, 574 F.2d 308 (5th

Cir.), cert. denied, 439 U.S. 931, 99 S.Ct. 321, 58 L.Ed. 2d

325 (1978), subsequent appeal sub nom. United States v.

Stratton, 649 F.2d 1066 (5th Cir. 1981).

(664 F.2d at 1039-40).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.