Opposition Brief — Gustafson v. United States

i Office-Supreme Court, US.

| 4y FILED

No. 84-482 _ DEC 26 i984

Pee i. STEVAS,

CLERK

Iu the Supreme Court of the Hnited States

OCTOBER TERM, 1984

KeiTH H. GUSTAFSON, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

Rex E. LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

MERVYN HAMBURG

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether petitioner’s offenses relating to his participation

in a large-scale marijuana distribution scheme may consti-

tute “racketeering activity” within the meaning of the Rack-

eteer Influenced and Corrupt Organizations Act, 18 U.S.C.

1961(1)(D). .

(D)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Albernaz v. United States, 450 Se EE b's wikis oh 6

Russello v. United States, No. 82-472

EE SN aa Peer 7

United States v. Bascaro, 742 F.2d 1335 ........ 8

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

i I, He We, BED occ evs TT e ccc ese 8

United States v. Turkette, 452 U.S. 576 ......... 7

Statutes:

Comprehensive Drug Abuse Prevention and

Control Act, 21 U.S.C. 801 et seq. .......... 4-5

rig Boh SB > | Beer 5

Omnibus Crime Control and Safe Streets

Bee as IE ETEED onc wn ccecccsegeces 5, 6

Racketeer Influenced and Corrupt Organizations

Act, 18 U.S.C. 1961 et seq. :

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CRE Fe. 6) 1) rer rrr er a

(IIT)

IV

Page

Statutes—Continued:

SE, OED ciinactucdcvcseshenenes 2,4

Ses MEE: db Waa Sheen cdncensscceasee 2

Pub. L. No. 91-452:

$ 1, 84 Stat. 922, 18 U.S.C.

SG ck ceck sakes s 66 s0o60e 0648 6

§ 904(a), 84 Stat. 947, 18 U.S.C.

ES SAV ea wee eb iwinee doncsddnseses 7

Se EE occ cnskcacedcncestasnbbasdavens 2

Miscellaneous:

Measures Relating to Organized Crime: Hearings

on S. 30, S. 974, S. 975, S. 976, S. 1623,

S. 1624, S. 1861, S. 2022, S. 2122, and

S. 2292 Before the Subcomm. on Criminal

Laws and Procedures of the Senate Comm.

on the Judiciary, 91st Cong., Ist Sess.

CORE Shan Chak ag See e ee bee RE OTe ce ewe nc ce 6

The Federal Effort Against Organized Crime:

Hearings Before a Subcomm. of the House

Com.n. on Government Operations, 90th

Coe., EOE GOe., BE. ZIG) occ cccscccccpecss 7

Iu the Supreme Court of the Anited States

OCTOBER TERM, 1984

No. 84-482

KEITH H. GUSTAFSON, PETITIONER

A

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1-28) is

reported at 734 F.2d 1447.

JURISDICTION

The judgment of the court of appeals was entered on June

25, 1984. A petition for rehearing was denied on July 30,

1984 (Pet. App. 29-30). The petition for a writ of certiorari

was filed on September 26, 1984. The jurisdiction of this

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

STATUTE INVOLVED

Relevant portions of the Racketeer Influenced and Cor-

rupt Organizations Act (RICO), 18 U.S.C. 1961 and 1962,

are reproduced at Pet. 2.

STATEMENT

Following a jury trial in the United States District Court

for the Middle District of Florida, petitioner was convicted

on one count of conspiracy to violate the RICO statute, in

(1)

2

violation of 18 U.S.C. 1962(d) (Count 1); one count involv-

ing a substantive RICO offense, in violation of 18 U.S.C.

1962(c) (Count 2); and one count of conspiracy to possess

and distribute marijuana, in violation of 21 U.S.C. 846

(Count 16). Petitioner was sentenced to concurrent terms of

12 years on count I, ten years on count 2, and five years on

count 16. In addition, he was fined a total of $35,000.'

1. The evidence at trial (see Pet. App. 2-3),? which is not

in dispute, showed that from at least early 1977 and for

several years thereafter co-defendant Tony Fernandez opera-

ted a large marijuana trafficking enterprise in Florida and

other locations in the United States. Fernandez imported

marijuana in multi-ton quantities. Co-defendant Robert

Govern, the head of the domestic distribution network,

purchased the marijuana from Fernandez and resold it to

various buyers. Petitioner was one of Govern’s employees.

His responsibilities included receiving loads of marijuana at

a stash house, paying the suppliers, weighing the marijuana,

distributing it to Govern’s customers, and receiving pay-

ments from them.

During late 1977 or early 1978 co-defendant Todd Rey-

nolds obtained several hundred pounds of marijuana from

Govern and petitioner. The marijuana was discovered and

confiscated by law enforcement officers before Reynolds

could pay for it. Reynolds then agreed to work for Govern

to satisfy his debt, and petitioner was assigned to train

Reynolds. In May 1978 petitioner and Reynolds went to

southern Georgia to help distribute between 28,000 and

‘Petitioner was indicted with 12 other defendants. Co-defendants

Govern, Mausser, Wilkerson, and Zielic were convicted on various

counts of the indictment. One of the other defendants was acquitted,

and the others either pleaded guilty or remained fugitives. Pet. App. |!

n.I.

?The description of the evidence at trial is taken from the govern-

ment’s court of appeals brief.

<r

a

3

32,000 pounds of marijuana to Govern’s customers. On

several subsequent occasions Reynolds and petitioner

accepted delivery of marijuana from Fernandez’ employees

at Govern’s stash house in Loxahatchee, Florida. From

June to November 1978, between 125,000 and 150,000

pounds of marijuana were received at the stash house and

distributed to customers. Petitioner and Reynolds collected

millions of dollars from Govern’s customers and paid Fer-

nandez’ agents for the marijuana until mid-November 1978.

Govern then decided that the sales proceeds would be col-

lected and kept at another location.

Petitioner took a leave of absence from the operation in

early 1979. He returned later in the year and again assumed

his role in Govern’s distribution network.

2. The court of appeals affirmed the convictions of peti-

tioner and his co-defendants, with the exception of one

conviction of co-defendant Govern as to which the court

found insufficient evidence (Pet. App. 1-28). The court of

appeals held, inter alia, that the new trial of petitioner and

his co-defendants following a mistrial was not barred on

double jeopardy grounds (id. at 16-18); that a communica-

tion from the trial court to the jury did not deprive petitioner

of his right to be present at every stage of the trial (id. at

18-19); that the prosecutor’s remarks during closing argu-

ments did not deny petitioner a fair trial (id. at 19-20); that

remarks made by counsel for one of petitioner’s co-

defendants did not constitute an adverse comment on peti-

tioner’s failure to testify (id. at 20-22); that there was suffi-

cient evidence to establish the existence of an “enterprise”

within the meaning of the RICO statute (id. at 23-26); that

marijuana is a dangerous drug within the meaning of the

RICO statute (id. at 23 n.11); and that the trial court did not

err in denying petitioner’s motion to sever (id. at 26-28).

4

ARGUMENT

Petitioner contends that marijuana offenses do not con-

stitute “racketeering activity” within the meaning of the

RICO statute, 18 U.S.C. 1961(1)(D). The court of appeals’

conclusion to the contrary is correct and does not conflict

with any decision of this Court or any other court of

appeals. Further review is therefore unwarranted.

The RICO statute, 18 U.S.C. 1962(c), makes it unlawful

for any person associated with an enterprise engaged in

interstate commerce to participate in the conduct of affairs

of the enterprise through a pattern of racketeering activity.

“Racketeering activity” is defined under 18 U.S.C. i1961(1)

to include certain state felonies and enumerated violations

of federal criminal laws, including “the felonious manufac-

ture, importation, receiving, concealment, buying, selling,

or otherwise dealing in narcotic or other dangerous drugs,

punishable under any law of the United States.” Petitioner

contends that the absence of any explicit mention of mari-

juana in this definition signifies an intent on the part of

Congress to exclude marijuana violations from the class of

offenses that may form the basis for a conviction under the

RICO statute. Petitioner claims that his RICO convictions,

which were premised on his involvement in a marijuana

trafficking scheme, must therefore be reversed. That claim is

without merit.

The RICO statute does not include any definition of the

phrase “narcotic or other dangerous drugs” found in 18

U.S.C. 1961(1)(D). But there can be no real doubt that

marijuana is a dangerous drug and that it was considered

dangerous at the time the RICO statute was enacted;

indeed, petitioner does not dispute this proposition.’ The

3Congress clearly viewed marijuana as 2 dangerous drug. In 1970,

shortly after the RICO statute was enacted, Congress passed the Com-

prehensive Drug Abuse Prevention and Control Act, 21 U.S.C. 801 et

~

5

statute does not contain any express exclusion for mari-

juana. Thus, the plain language appears to indicate that

felonies involving distribution of marijuana would qualify

as predicate offenses under RICO.

Petitioner contends (Pet. App. 5-11) that the legislative

history demonstrates a congressional intent to exclude mari-

juana offenses from the coverage of the RICO statute. He

points in particular to the fact that some early drafts of the

RICO legislation referred specifically to dealings in “nar-

cotic drugs or marihuana” in defining the term “criminal

activity,” while the final legislation omitted the word “mari-

huana” and instead used the phrase “narcotic or other dan-

gerous drugs” in defining “racketeering activity.” The

obvious purpose of this change was to expand the categories

of illicit drugs within RICO’s reach; accordingly, the most

likely explanation for the change is that Congress viewed the

reference to marijuana as surplusage once it added the

“other dangerous drugs” language. The change in language

therefore reinforces the conclusion that Congress believed

marijuana to be encompassed within the category of “other

dangerous drugs.™

seq. That Act classified marijuana as a controlled substance and pro-

vided for substantial criminal penalties in connection with various

marijuana-reiated activities. The fact that Congress did not provide for

identical treatment of all controlled substances does not mean that it

viewed some of those substances as nondangerous. Moreover, at that

time the government agency charged with detection of marijuana

offenses was called the Bureau of Narcotics and Dangerous Drugs (now

known as the Drug Enforcement Administration). See 21 U.S.C. (1970

»4+ \?02(4). Congress presumably was aware of both the agency’s name

. its jurisdiction at the time the RICO statute was enacted.

‘Petitioner purports to find support for his position in Title III of the

Omnibus Crime Control and Safe Streets Act, 18 U.S.C. 2516(1\e),

enacted two years before passage of the RICO statute. Section

2516{1)(e) provides that interception of wire and oral communications

may be authorized if it will yield evidence of, inter alia, any offense

involving dealing in “narcotic drugs, marihuana, or other dangerous

6

The conclusion that Congress intended that marijuana

violations would qualify as RICO predicate offenses is fuiiy

supported by the underlying purposes of the RICO statute.

In enacting RICO, Congress made the express finding that

organized crime derived a major portion of its power

through money obtained from, inter alia, “the importation

and distribution of narcotics and other dangerous drugs”

and stated that the purpose of the new statute was the

eradication of organized crime. Pub. L. No. 91-452, § 1, 84

Stat. 922, 18 U.S.C. 1961 note. Congress was well aware

drugs” (emphasis added). That language simply reinforces the conclu-

sion that Congress viewed marijuana as a dangerous drug.

Petitioner suggests (Pet. 8, 11) that Deputy Attorney General Klein-

dienst objected specifically to removal from the RICO statute of the

reference to marijuana. In fact, Deputy Attorney General Kleindienst

merely proposed to the Senate committee a definition of “racketeering

activity” that would have included acts involving “narcctic drugs, mari-

juana or other dangerous drugs.” See Measures Relating to Organized

Crime: Hearings on S. 30, S. 974, S. 975, S. 976, S. 1623, S. 1624, S.

1861, S. 2022, S. 2122, and S. 2292 Before the Subcomm. on Criminal

Laws and Procedures of the Senate Comm. on the Judiciary, 9\st

Cong., Ist Sess. 405 (1969). Like the wording of Section 2516(1)(e)

discussed above, the language proposed by Deputy Attorney General

Kleindienst — at an early stage in consideration of the RICO legislation

— supports the view that marijuana was generally regarded as within the

category of dangerous drugs and that the reference to marijuana could

properly have been deleted as surplusage.

Petitioner also notes (Pet. 8 & n.5) that Professor Blakey, who played

a role in drafting the RICO statute, has suggested that Congress’s

omission of an express reference to marijuana from the final version of

the RICO statute reflected a deliberate decision to exclude marijuana

offenses from RICO coverage. Nothing in the legislative history docu-

ments such an intent on Congress’s part. As we argue in the text, it seems

far more likely that Congress regarded the reference to marijuana as

surplusage. In any event, Professor Blakey’s after-the-fact characteriza-

tions do not amount to evidence of a clearly expressed legislative intent

that would displace other indications of congressional purpose. See

Albernaz v. United States, 450 U.S. 333, 336 (1981).

7

that organized crime f.gures were active in marijuana traf-

ficking. For example, in 1967 Lawrence Fle?shman, Assist-

ant Commissioner of the Bureau of Customs, testified that

“(t]he narcotics and marihuana traffic is the single area in

which the involvement with organized crime is the greatest.”

The Federal Effort Against Organized Crime:Hearings

Before a Subcomm. of the House Comm. on Government

Operations, 90th Cong., Ist Sess., Pt. 2, at 239 (1967). In

those circumstances, it is difficult to escape the conclusion

that Congress intended to include marijuana trafficking

offenses within the sweep of the RICO statute. That conclu-

sion is particularly appropriate in view of Congress’s

express statement that the RICO statute “shall be liberally

construed to effectuate its remedial purposes.” Pub. L. No.

91-452, $ 904(a), 84 Stat. 947, 18 U.S.C. 1961 note. See

Russello v. United States, No. 82-472 (Nov. 1, 1983), slip

op. 10-12; United States v. Turkette, 452 U.S. 576, 588-589

(1981). The purposes of the RICO statute are clearly fur-

thered by the holding that the statute extends to offenses

relating to the sort of massive marijuana trafficking opera-

tion involved in this case.*

Petitioner acknowledges (et. 14-16) that no court of

appeals has held that marijuana violations may not consti-

tute predicate offenses for purposes of the RICO statute.

The only other court of appeals that has addressed a claim

‘Petitioner offers several hypothetical situations — far removed from

his own extensive marijuana trafficking activities —involving the shar-

ing of a minimal amount of marijuana by persons involved in a legal

association and suggests that application of the RICO statute to such

situations would be inappropriate. See Pet. 11-13. It is doubtful that the

activity petitioner describes would fall within the definition of “racket-

eering activity,” which covers only drug offenses that constitte felonies.

Moreover, the application of RICO in such circumstances would be

equally infelicitous if the drug being shared were some other dangerous

non-narcotic drug, such as methamphetamine, instead of

marijuana.

8

like petitioner’s has rejected it. See United States v. Phil-

lips, 664 F.2d 971, 1039-1040 (Sth Cir. 1981), cert. denied,

457 U.S. 1136 (1982). Petitioner complains that the court

below did not make an independent examination of such

claims because it regards Phillips as binding precedent that

cannot be overturned except by the Eleventh Circuit sitting

en banc.. However, petitioner himself requested en banc

consideration of his claim, and the Eleventh Circuit denied

his petition without dissent (Pet, App. 29-30). See also

United States v. Bascaro, 742 F.2d 1335, 1342-1343 (1ith

Cir. 1984). Thus, the Eleventh Circuit has had a full oppor-

tunity to consider the advisability of its adherence to Phil-

lips and has chosen to continue that adherence.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Rex E. Lee

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

MERVYN HAMBURG

Attorney

DECEMBER 1984

DOJ-1984-12