Petition for Writ of Certiorari — Arnoldt v. United States

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IN THE

Supreme Court of the United States#N 2 1992

OCTOBER TERM, 1991 Of; OF THE CLERK

%,?

4 te

Supreme Court, U.S.

rere. E D

GARLAND ARNOLDT,

y Petitioner.

UNITED STATES OF AMERICA,

" —— Re sponde ne,

GARLAND ARNOLDT, a k a SHAGG, ete.,

V Pe titione fe

UNITED STATES OF AMERICA,

; R sponde nt.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

| LEONARD KAPLAN

| Assistant! Federal Public

| Defender

Office of the Federal Public

Defender

2307 United States Courthouse

500 Quarrier Street

Charleston, WV 25301

(394) 343-9551

(FTS) 930-5165

Counsel of Record for Petitioner

wy Arnoldt ve USA,

BARBARA H. LUPTON

(Admitted to Supreme Court as

Barbara H. Fleisher)

MASTERS & TAYLOR, L.C.

4th Floor, Peoples Bldg.

179 Summers Street

Charleston, WV 25301

(304) 342-3106

Counsel of Record for Petitioner

in Arnoldt,a/k/a

Shagg v. U.S.A.

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

1. Does 28 U.S.C. $ 636 permit a magistrate to accept

a verdict in a felony trial if the defendant affirmatively

consents?

2. Does 28 U.S.C. $ 636 permit a magistrate to accept

a verdict in a felony trial if the defendant does not af-

firmatively consent but fails to object?

3. Is the scope of 28 U.S.C. $ 636(b) (3) limited by

Fed. R. Crim. P. 25?

4. If 28 U.S.C. § 636 permits a magistrate to accept

a verdict in a felony trial under some circumstances, is

the statute consistent with Article III under those circum-

stances if the magistrate’s actions are effectively unre-

viewable by the district court?

5. Does the Double Jeopardy Clause bar prosecution

on RICO charges. 18 U.S.C. $$ 1962(¢) & (d), where in

order to establish predicate acts of racketeering, an es-

sential element of the charges, the government will prove

conduct that constitutes offenses for which the defendant

has already been prosecuted?

(i)

—

TABLE OF CONTENTS

Page

SOR op Og ia | cr i

ME MY PROT EUPIA ID oo cs ccicnecacencenacecccecesteneacscece. V

a wishes, 1

ARTS SI ice na ne 2

STATUTORY PROVISIONS INVOLVED .......__. 2

STATEMENT OF THE CASE ................... 2

REASONS FOR GRANTING THE PETITION __. 3

I. INTRODUCTION TO ISSUES INVOLVING

FEDERAL MAGISTRATES ACT .......__.. 3

Il. ACCEPTANCE OF A VERDICT .............. 5

ec cnccn itive veceicdnc de acnuccculesee 13

IV. FED.R.CRIM.P. 26 ................................................ 17

V. CONSTITUTIONAL INFIRMITY ................... 18

VI. THE DOUBLE JEOPARDY CLAUSE AND

“COMPOUND-COMPLEX FELONIES” _. 20

UN ccc cckce ccc eaciecceucce aoe ONE 23

APPENDIX

A. Opinion of the United States Court of Appeals

for the Fourth Circuit—October 11,1991 ._. la

B. Order of the United States District Court for

the Southern District of West Virginia, Denying

Motion to Dismiss—March 23, 1989 ............ 17a

C. Except of Trial Transcript, United States Dis-

trict Court for the Southern District of West

Virginia, Denying Motion for Judgment of

Acquittal—March 23, 1989 _.................. Res ns 19a

(iii)

TABLE OF CONTENTS—Continued

D. Order of the United States District Court for

the Southern District of West Virginia, Deny-

ing Post-Trial Motion for Judgment of Acquit-

tal— August 29, 1989 ........

E. Statutory Provisions !nvolved

1. Title 28 U.S.C. § 636(a), (b), (c)

Title 18 U.S.C. § 1962(c), (d)

Fed.R.Crim.P. 25

Page

23a

24a

30a

3la

TABLE OF AUTHORITIES

CASES: Page

Adventures in Good Eating v. Best Places to Eat,

131 F.2d 809 (7th Cir. 1942) 12

Allen v. United States, 921 F.2d 78 (6th Cir.

1990), cert. denied, 111 S.Ct. 78 (1991) 11

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

ED pos prc tee ee ee sttonde 20-21

Freytag v. Commissioner of Internal Revenue,

111 S.Ct. 2681 (17901) .......................... 5, 7, 18, 19-20

Garrett v. United States, 471 U.S. 773 (1985) ......... 22

Gomez v. United States, 109 S.Ct. 2237 (1989) ....... passim

Government of the Virgin Islands v. Paniagua,

922 F.2d 178 (3rd Cir. 1990). 9-10

Grady v. Corbin, 110 S.Ct. 2084 (1990)

Illinois v. Vitale, 447 U.S. 410 (1980)

Matthews v. Weber, 423 U.S. 261 CRIED eiccsecesecassen 4-10

Peretz v. United States, 111 S.Ct. 2661 (1991) _. passim

Press-Enterprise Co. v. Superior Court of Cal.,

Ci US. OO) Oe — 8

United States v. Gonzalez, 921 F.2d 1530 (11t

Cir.), petition for cert. filed, No. 90-7857 (U.S.

AEE Te; THOR eee 22-23

United States v. Day, 789 F.2d 1217 (6th Cir.

1986) sacha awals en cedareddanie aerie e e nie 9-13

United States v. Jones, 938 F.2d 737 (7th Cir.

i | ie NS einem ue eliente Le 17

United States v. Pungitore, 910 F.2d 1084 (38rd

Cir. 1990), cert. denied, 111 S.Ct. 2009 (1991).. 22-23

United States v. Raddatz, 447 U.S. 667 (1980) _ passim

United States v. Rivera-Sola, 713 F.2d 866 (1st

Cir. 1983) me Rahs FOE Nore hace I 9 A RO 12

United States v. Sawyers, 902 F.2d 1217 (6th Cir.

1980), cert. denied, 111 S.Ct. 2895 (1991) 17

United States v. Trice, 864 F.2d 1421 (8th Cir.

1988), cert. dismissed, 491 U.S. 914 (1989) ___. 13

Wingo v. Wedding, 418 U.S. 461 (1974)

U.S. CONSTITUTION:

Article ITI Reese .... 18-19

Double Jeopardy Clause, US. Const., Amend. V____-.21--23

eee teeeee passim

TABLE OF AUTHORITIES—Continued

STATUTES: Page

BD Res We wickets pains atten 3

ph RR Rome TE 9 } Cae cte uecce tee a! 2

5G Us ON he eee 2

ge Tee | OE f } ein oan ty Aone tree 2

18 U.S.C. § 1952 (a) (3) ........... BR Rte iP es) Ge tPA) 3

BED a Be RI wiiveccctiiconcecciaccmenccnea ee 2

RE Us Oe OE we nccccotacetcincachee ona passim

ek Cys ee OED eee ae Seah <a okn ieth 3

Ek. TA is TIE eeniceinrnnsecin cthaninenian a eee 2

20 Tien Oe ee Oe. Cc eee 3

26 U.S.C. $3 Go6(a), (b) and (e) .............2..... 2-5

BIR Rome Tf Sh TS) emer We AP 7-8

28 U.S.C. § 686(b) (8) ...........................--.. Sion Gye i Bae passim

SD ET rei ED oi enesneecscceccrnassadiccnoseecwnaree 8

BR ee S| ern merR mers ANE? CT 2

MISCELLANEOUS:

Rule 13.1, Rules of the United States Supreme

ER Tee a eer Aly A?) 2

PU BG WIE « GU cn nsncinn bance ccatasiavahaces Settee he passim

Fed.R.Crim.P. 25 (a) ................. rye eee Gt AP 9

POG Te AEE « BPD oivccsscccrcoddcosicase ee 9

S. Rep. No. 74, 96th Cong. 3, 4, reprinted in 1979

U.S. Code Cong. & Ad. News 1469, 1472 _............ passim

H.R. Rep. No. 1609, 94th Cong. 2, 4, 6, 7, re-

printed in 1976 U.S. Code Cong. & Ad. News

6162, 6164, 6166, 6167... i 8-9-12

H.R. Rep. No. 1629, 90th Cong., ond Sess., e-

printed in 1968 U.S. Code Cong. & Ad. <del

iy BU oitsesigedwlcueee 7-8-17

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-

GARLAND ARNOLDT,

’ Petitioner,

UNITED STATES OF AMERICA,

Respondent.

GARLAND ARNOLDT, a/k/a SHAGG, etc..

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioner (defendant below) Garland Arnoldt petitions

the Court for a writ of certiorari to review the judgment

of the United States Court of Appeals for the Fourth

Circuit in this case.

OPINION BELOW

The opinion of the United States Court of Appeals for

the Fourth Circuit ‘App. 1-14) is reported at 947 F.2d

1120 (4th Cir. 1991).

JURISDICTION

The judgment of the United States Court of Appeals

for the Fourth Circuit (App. 1-14) was entered on October

11, 1991. The jurisdiction of this Court is invoked under

28 U.S.C. $1254 pursuant to this Court’s Rule 13.1

allowing 90 days for filing a petition for a writ of

certiorari. .

STATUTORY PROVISIONS INVOLVED

Title 28 U.S.C. $$ 6861a), (b) and (c), provisions of

the Federal Magistrates Act, 28 U.S.C. § 631 et seq., are

set forth in the Appendix: App. 24a.

Title 18 U.S.C. $$ 1962(¢) and (d), provisions of the

Racketeer Influenced and Corrupt Organizations Act, 18

U.S.C. $1961 et seg., are set forth in the Appendix:

App. 30a.

Fed.R.Crim.P. 25 is set forth in the Appendix: App. 31a.

STATEMENT OF THE CASE

“Arnoldt I.” On August 2, 1988, petitioner was in-

dicted by a federal grand jury sitting in Charleston, West

Virginia in an eight count indictment charging him as

follows: count 1, conspiracy to distribute cocaine, 21

U.S.C. § 846; counts 2, 3, 4 and 5, distribution of cocaine,

21 U.S.C. § 841(a) (1); count 6, possession of ammunition

by a prohibited person, 18 U.S.C. $§ 922(g) (1) ana

924(a); count 7, possession of a firearm by a prohibited

person, 18 U.S.C. §§ 922(g) (1) and 924(a); and count

8, carrying a firearm during and in relation to a drug

trafficking offense, 18 U.S.C. § 924(¢c) (1).

On November 7-9, 1988, petitioner proceeded to trial on

counts 1, 2, 3, 4, 5 and 8, the district court having pre-

viously severed counts 6 and 7. After closing argument

and the reading of the jury instructions, but before the

return of the jury’s verdict, the district judge announced

in the presence of counsel and petitioner that he was ab-

senting himself from the city “for other business” and

that he was delegating the authority and responsibility

to preside over the return and pronouncement of the ver-

dicts to a Magistrate, who did so preside on the following

day. Petitioner neither consented nor objected. The jury

returned verdicts of guilty on counts 1, 3, 4 and 5, and

verdicts of not guilty on counts 2 and 8.

“Arnoldt II.” On January 10, 1989, following peti-

tioner’s trial on the charges in Arnoldt IJ but before his

sentencing, petitioner was indicted in fourteen (14)

counts of an eighty-five (85) count indictment charging

him as follows: count 1, RICO, 18 U.S.C. $ 1962(c):

count 2, RICO conspiracy, 18 U.S.C. § 1962(d); counts 7,

10, 13 and 71, distribution of controlled substances, 21

U.S.C. $ 841(a) (1) and 18 U.S.C. $2; and counts 5, 6,

8, 9, 11, 12, 67 and 69, interstate travel in aid of rack-

eteering, 18 U.S.C. $ 1952(a) (3).

In count 1, eight predicate acts of racketeering were

alleged in support of the RICO charge; in count 2, these

predicate acts were reaileged in support of the RICO con-

spiracy charge. The first four such predicate acts were

those forming the basis of counts 1, 3, 4 and 5 in Arnoldt

I, on which petitioner had already been convicted two

months earlier. }

On March 21-23, 1989, petitioner proceeded to trial on

the indictment. The jury returned verdicts of guilty on

all counts.

REASONS FOR GRANTING THE WRIT

I. INTRODUCTION TO ISSUES INVOLVING FED-

ERAL MAGISTRATES ACT

It is necessary that this Court revisit the Federal Mag-

istrates Act, 28 U.S.C. $$ 631, et seg., because the guid-

ance it has provided thus far regarding the powers of

magistrates is inadequate: hecause decisions of the Fourth

and other circuits have overextended the Act’s reach and

are incompatible with this Court’s decisions; and because

a circuit split has developed. In the instant case, the

Fourth Circuit held that the Act authorizes a magistrate

to preside over the return of a verdict in a felony case

whenever the defendant fails to object and that such

authorization is not constitutionally infirm. (App. 5, 6)!

As the Act does not explicitly authorize a magistrate

to accept a felony-case verdict, any such conduct must

be pursuant to the authorization vel non of 28 U.S.C.

§ 636(b)(3),° which provides that “[a] magistrate may

be assigned such additional duties as are not inconsistent

with the Constitution and laws of the United States.”

In its interpretation and application of this provision,

this Court has consistently emphasized and relied upon

the structure and legislative history of the Act and this

provision; the rule of ejusdem generis; and the necessity

that the magistrate’s actions be effectively reviewable by

the district judge. See Peretz v. United States, 111 S.Ct.

2661 (1991) (jury voir dire); Gomez v. United States,

109 S.Ct. 2287 (1989) (unanimous) (jury voir dire);

United States v. Raddatz, 447 U.S. 667 (1980) (suppres-

sion motion); Matthews v. Weber, 423 U.S. 261 (1976)

(social security benefit case); Wingo v. Wedding, 418

U.S. 461 (1974) (habeas corpus hearing; specific holding

subsequently nullified by statute). The instant Petition

raises four principal issues concerning the Magistrates

Act:

(1) The initial question for this Court is whether the

Act authorizes the acceptance of a felony-case verdict by

a magistrate under any circumstances, e.g., even if the

defendant affirmatively consents. Petitioner contends that

it does not.

(2) The next question is whether, if affirmative con-

sent is a sufficient condition for such authorization, it is

1 A-X refers to p. X of the Appendix to this Petition.

* As codified by the 1976 Amendment. This provision was codified

as $ 636(b) in the original 1968 Act.

a necessary condition, i.e., whether, e.g., failure to object

will suffice. Petitioner’s contention is that mere failure

to object is insufficient to trigger authorization by the

Act.

(3) A collateral question is whether § 636 (b) (3)

must be read in pari materia with other law. Petitioner

contends that its reach is limited by Fed.R.Crim.P. 25.

(4) Finally, this Court must decide whether, if there

are conditions under which the Act authorizes a magis-

trate to accept a verdict, the Act under those conditions

is consistent with Article III given the nature of accept-

ance of a verdict as it relates to its reviewability by the

district court. This issue requires that this Court reach

a question concerning the implications of the structural

protections of Article III that it recently avoided in

Peretz (Magistrates Act) and in Freytag v. Commis-

sioner of Internal Revenue, 111 S.Ct. 2631 (1991) (Ap-

pointments Clause). Petitioner contends that acceptance

of a verdict is of a nature such as to make it, in practice,

effectively unreviewable, therefore rendering unconstitu-

tional the Act as so construed.

Il. ACCEPTANCE OF A VERDICT

In order to determine whether acceptance of a felony-

case verdict can ever, e.g., even when the defendant

affirmatively consents, be one of the “additional duties” *

* This Court has thus far not carefully parsed § 636. Sections

(a)(1), (a)(2), (a)(3), (a)(4), and (b)(3) speak of “powers an

duties,” ‘“‘power,” “power,” “power,” and “duties” respectively.

“Surely there is a distinction between ‘additional duties’ and ‘addi-

tional powers’.”” United States v. Mang Sun Wong, 884 F.2d 1537,

1546 (2d Cir. 1989) (Altimari, J., dissenting), cert. denied, 493

U.S. 1082 (1990). Indeed, that the distinction was made inten-

tionally is apparent from the structure of §$(a)(1), which refers

to powers and duties conferred or imposed. The parallelism is

patent: Power is conferred; a duty is imposed. One would not

speak of imposing a power. Section (b)(3), with which the instant

Petition is concerned, therefore speaks of “duties” as distinct from

2) ”

covered by § 636(b) (3), it is necessary to seek what

guidance is available from this Court’s prior decisions,

and to examine the legislative history of the Act, the

provisions of other pertinent statutes, and the character- |

istics of the return-of-verdict stage of a trial. For ac-

ceptance of a verdict by a magistrate to be permitted,

there must be “clear evidence that Congress actually in-

tended to permit magistrates to take on [that] role,”

Peretz, 111 S.Ct. at 2666, because reading such a role

into the Act implicates a defendant’s constitutional right

to have an Article III judge preside at his trial. In ad-

dition, the provision should be interpreted in light of the

Act’s structure and purpose, id. at 2666 n.7, and in ac-

cordance with the principle of ejusdem generis:* Any

additional duties performed pursuant to the general au-

thorization of § 636(b) (3) (should be related to the duties

specified in § 636, id. at 2666; should be consistent with

the basic purposes of the statute, id. at 2657; and should

not be of far greater importance than the specified duties,

id. In sum, any interpretation should balance the inter-

ests of the defendant and the policies that undergird the

“powers.” This Court, however, has not yet dealt with that distinc-

tion vel non or with the distinetion’s necessary implication that the

language of § (b)(3) actually gives magistrates much less authority

than is apparent at first glance.

° Also, § (b)(3) speaks of additional duties. Additional to what?

Additional to those actions of which §§ (b)(1), (b)(2), and (c)

speak, within which § (b)(3) is sandwiched? Or additional to those

actions specified in § (a), which alone contains the term “duties”?

If the latter, it should be additional only to those actions specified

in §$ (a)(1) because only § (a)(1) speaks of “duties” (§§ (a)(2),

(a)(3), and (a)(4) speak only of “power’): if so, and because

accepting a verdict is much more akin to those actions specified in

§$§ (a)(2), (a)(3), and (a)(4) than it is to what United States

commissioners used to do, § (a)(1), it may be concluded that accept-

ing a verdict would be a power, and not a duty, and would therefore

not fall under § (b)(3).

4 When general words are in close proximity to the enumeration

of particular classes, the general words should be construed as

applying only to the same general class as those enumerated.

Act; and any duty given the magistrate must be one of

the district court’s “subordinate duties,” id. at 2668, and

must be separate from the “actual trial,” ° id. at 2668 n.9.

Ejjusdem Generis. This rule was applied in all but

name ° in Gomez:

When a statute creates an office to which it assigns

specific duties, those duties outline the attributes

of the office. Any additional duties performed pur-

Suant to a general authorization in the statute rea-

sonably should bear some relation to the specified

duties.

[Tjhe carefully defined grant of authority to

conduct trials of civil matters and of minor criminal

cases should be construed as an implicit withholding

of the authority to preside at a felony trial.

109 S.Ct. at 2241, 2245 (unanimous), reaff’d in Freytag

v. Commissioner of Internal Revenue, 111 S.Ct. 2631,

2637 (1991) (unanimous) (quoting Gomez, and also

Stating that “the list of specifically enumerated duties

followed the general grant of authority and provided the

outlines for the scope of the general grant;” i.e., Freytag

contracted the loose “reasonably should bear some rela-

tion to” standard of Gomez to a standard whereby the

specific duties defined the limits of those delegable pur-

suant to § (b)(3)). Thus, the reach of § (b) (3) should

be determined by looking to those neighboring provisions

Which specify duties. Section 636(b) (1) (A), which speci-

fies duties, specifically refers to “pretrial matter[s],” as

distinct from the “actual trial,” vide supra. Such refer-

ences pervade the legislative history. See H.R. Rep. No.

* This theme pervades the Act’s legislative history. See Peretz,

111 S.Ct. at 2672 and n.1 (Marshall, J., dissenting) (collecting

citations) ; Gomez, 109 S.Ct. at 2245 and n.22 (collecting citations) ;

Matthews v. Weber, 423 U.S. at 272 n.7.

°“The canon of ejusdem generis keeps the ‘additional duties’

clause from swallowing up the rest of the statute. See Gom: ..

Peretz, 111 S.Ct. at 2679 (Scalia, J., dissenting).

”

1629, 90th Cong., 2d Sess., reprinted in 1968 U.S. Code

Cong. & Ad. News 4252, 4254 (“pre-trial . . . proceed-

ings’); H.R. Rep. No. 1609, 94th Cong. 2, 4, 6, 7, re-

printed in 1976 U.S. Code Cong. & Ad. News 6162 (“mat-

ter preliminary to trial’), 6164 (‘certain preliminary

matters”), 6165 (“preliminary or pretrial processing’’),

6166 (“pretrial proceedings’), 6167 (“a variety of pre-

trial and preliminary matiers”); S.Rep. No. 74, 96th

Cong. 3, 4, reprinted in 1979 U.S. Code Cong. & Ad.

News 1469, 1472 (“pretrial . . . proceeding,” “pretrial

matters”). The inclusion of jury voir dire, see Peretz and

Gomez, Within the reach of § (b) (8) is not inconsistent

with § (b)(1)(A) because, although jury voir dire is

considered to be part of the trial for most (but not all)

purposes, see Gomez, 109 S.Ct. at 2246; Press-Enterprise

Co. v. Superior Court of Cal., 464 U.S. 501, 516 (1948)

(Stevens, J., concurring), it at least may arguably be

viewed as quasi-pretrial or quasi-preliminary.’ The re-

turn of a verdict, however, can hardly be so viewed.

Consistency with the Laws of the United States. Not

only should a provision of a statute be interpreted so as

to be in accord with the provisions of the same statute,

it should, of course, be interpreted so as to be in accord

(or at least not conflict) with the provisions of other

statutes. Indeed, § 636(b) (3) itself explicitly mandates

that a magistrate’s additional duties “‘not [be] inconsist-

ent with the... laws of the United States.” * One such

7 This aspect of legislative history is discussed further. Vide

infra.

8 This Court’s repeated interpretation of § 686(b)(3) according

to the rule of ejusdem generis, vide supra, may at first glance

appear to be inconsistent with this language of § 636(b)(3). Sec-

tion 636(c) begins, ‘““Notwithstanding any provision of law to the

contrary... .” How, then, can § 636(b)(3) be read in conjunction

with § 636(c) if the former contains “‘not inconsistent with the...

laws of the United States” language, while the latter contains

“ln lotwithstanding any provision of law to the contrary” language?

The answer is that the “[n]otwithstanding any provision of law to

law is Fed. R. Crim.P. 25(b), which provides that, after

a verdict, the trial judge may be replaced by another

judge for reason of absence, death, sickness, or other dis-

ability. Rule 25(a), however, provides that, during trial,

the trial judge may be replaced by another judge for rea-

son of death, sickness, or other disability. Thus, during

trial, t.e., before a verdict, the trial judge may not be

replaced by another judge for reason of mere absence, as

absence is specified as a reason in Rule 25(b) but not in

Rule 25(a). If the trial judge may not be replaced by a

judge during trial, he a fortiori may not be replaced by

a magistrate. See Government of the Virgin Islands v.

Paniagua, 922 F.2d 178, 183 (3rd Cir. 1990); contra

United States v. Day, 789 F.2d 1217, 1224 (6th Cir.

1986). Yet that is what happened to Petitioner for rea-

son of mere absence “for other business.”

Reviewability. The sine qua non of the Act and this

Court’s decisions has been reviewability, i.e., effective re-

view of the actions of the magistrate by the district court,

a requirement that pervades the language of the Act and

its legislative history. “. . . Congress contemplated that

district courts would retain the greatest possible scrutiny

and control of a magistrate’s trial jurisdiction.” Gomez,

109 S.Ct. at 2242 (citations and internal quotes omitted) ;

see also id. at 2244 (magistrate’s trial jurisdiction must

the contrary” language of § 636(C) is not intended to refer to

substantive provisions of law:

The inital sentence of the revised section uses the phrase

“notwithstanding any provision of law to the contrary—”’. This

language is intended to overcome any problem which may be

caused by the fact that scattered throughout the code are stat-

utes which refer to “the judge” or “the court”. It is not feasible

for the Congress to change each of those terms to read “the

judge or a magistrate”. It is, therefore, intended that the

permissible assignment of additional duties to a magistrate

shall be governed by the revised section 636( b), “notwithstand-

ing any provision of law” referring to “judge” or “court”.

H.R. Rep. No. 1609, 94th Cong. 9, reprinted in 1976 U.S. Code Cong.

& Ad. News 6162, 6169.

“remain subject to judicial review”); td. at 2245 (“sub-

ject to... judicial review”) ; Raddatz, 447 U.S. at 681

(“under the district court’s total control”) ; id. at 681 n.8

(“subject always to ultimate review by a judge’). A

magistrate can handle pretrial matters only “‘subject to

reconsideration by the district court.” Gomez, 109 S.Ct.

at 2243-44. And, specifically with regard to § (b) (3),

“'t]he Act’s sponsors made it quite clear that ...a

district judge would retain ultimate responsibility for

decision making it every instance in which a magistrate

might exercise additional duties jurisdiction.” Matthews

v. Weber, 423 U.S. at 270 (citations and internal quotes

and brackets omitted), reasoning reaff’'d Gomez, 109 S.Ct.

at 2242. Although this Court has held that the Act

authorizes the consensual conduct of jury voir dire by a

magistrate even though that is a function whose perform-

ance “may be difficult for a judge to review with infalli-

ble accuracy,” Peretz, 111 S.Ct. at 2669 n.12, that per-

formance is still substantially reviewable, and it occurs

early enough in the proceedings so that substantial judi-

cial and other resources have not yet been invested, there-

fore making it realistic to expect that the judge would

abort the proceedings if the magistrate’s performance

raised concerns. That is hardly the case at the verdict

stage, when it may realistically be expected that the |

judge would cause the entire trial to be redone’® only in |

the face of the most egregious error by the magistrate.

The magistrate’s conduct in addressing the jury, reading

its verdict, ensuring that it has considered all of the

counts and completed the verdict form correctly, ensur-

® For further discussion of this aspect of the legislative history

of the Act, see TPO, Inc. v. McMillen, 460 F.2d 348 (7th Cir. 1972),

endorsed by Wingo v. Wedding, 418 U.S. 461, 470 n.10 (1974).

10 A new trial would be the only way to correct the magistrate’s

performance in receiving the verdict as “it could not be seriously

suggested that the original jury could be reassembled,” Government

of the Virgin Islands v. Paniagua, 922 F.2d 178, 183 (3rd Cir.

1990).

ing unanimity by polling the jurors individually, and

handling the numerous problems that may arise should

that process not go smoothly “according to script” "™ is

therefore effectively unreviewable.”

Nature and Importance of Return of Verdict. To be

assignable to a magistrate, an “additional duty” must be

one of the district court’s “subordinate duties’ and not be

of far greater importance than a magistrate’s specified

duties. Vide supra. Receiving the verdict and polling

the jury is not a mere ministerial task. It is the culmina-

tion of the trial. To the defendant and to the public, it is

the most important part of the trial,’’ and its significance

should not be “diluted,” Allen v. United States, 921 F.2d

78, 80 (6th Cir. 1990), cert. denied, 111 S.Ct. 78 (1991),

by replacing a judge with a magistrate. The jury should

not be given the impression that the return of its verdict

and the polling of its individual members are “merely a

11 For one of many examples, see United States v. Johnson, 720

F.2d 519, 520-21 (8th Cir. 1983), cert. denied, 465 U.S. 1036 (1984).

12 The Ninth Circuit disagrees. See United States v. Saunders,

641 F.2d 659 (9th Cir. 1980), cert. denied, 452 U.S. 918 (1981).

While recognizing that “the Magistrates Act comports with Article

III because it subjects the magistrates’ rulings to de novo deter-

mination by a federal district judge,” vide infra, and that it is for

that reason that this Court has allowed magistrates to perform

inherently judicial tasks only when under the supervision of an

Article III] judge, see id. at 663 (emphasis added) (citations

omitted), the Ninth Circuit went on to express the pollyannish view

that “[i]f the magistrate had taken any action [in scheduling jury

deliberations] disagreeable to the trial judge, it would have been

the judge’s duty to correct it by holding a new trial [, and] [t]lo

suppose that the trial judge would be dissuaded from carrying out

this duty by the public expense of a new trial is to ignore the

constitutionally preserved independence of Article III judges.” See

id. at 664.

Tt is by no means the most important part of the trial in the

eyes of the Seventh Circuit. See United States v. Curry, 767 F.2d

328, 330 (7th Cir. 1985) (“routine dut[y]”); Taylor v. Oxford, 575

F.2d 152, 154 (7th Cir. 1978) (‘administrative type function[ ]”’).

routine matter of form,” United States v. Rivera-Sola,

713 F.2d 866, 874 (1st Cir. 1983). It is necessary that

the polling of the jury be done with full solemnity with

a judge presiding in order that its purposes be realized,

just as it is required that certain statements be sworn

rather than routinely signed (sworn:unsworn = judge:

magistrate). It is important, too, that the result be ac-

cepted by the defendant and the public. The return of the

verdict is the high point of the trial, and “[g]reater

confidence in the outcome of the contest and more respect

for the judgment of the court arise when the trial is by

the judge,” Adventures in Good Eating v. Best Places

to Eat, 131 F.2d 809, 815 (7th Cir. 1942).

Relation of Return of Verdict to Actual Trial. To be

assignable to a magistrate, an “additional duty” must be

separate from the actual trial. Vide supra. The return

of the verdict is not.

Legislative History and Circuit Law. All of the above

leads to the conclusion that the Act does not authorize a

magistrate to accept a verdict—even if the defendant

affirmatively consents. All of the above, however, is not

the whole story. H.R. Rep. No. 1609, 94th Cong., 2d Sess.

12, reprinted in 1976 U.S. Code Cong. & Ad. News 6162,

6172 (emphasis added) states:

Under this subsection [636(b) (3)], the district

courts would remain free to experiment in the as-

signment of other duties to magistrates which may

not necessarily be included in the broad category of

“pretrial matters.” This subsection would permit, for

example, a magistrate to review default judgments,

order the exoneration or forfeiture of bonds in crim-

inal cases, and accept returns of jury verdicts where

the trial judge is unavailable. This subsection would

also enable the court to delegate some of the more

administrative functions to a magistrate, such as

the appointment of attorneys in criminal cases and

assistance in the preparation of plans to achieve

prompt disposition of cases in court.

a oe

ll ———

The idea that magistrates may accept verdicts may have

originated in a description by a district judge of the

duties then being assigned to a magistrate in his district.

See United States v. Trice, 864 F.2d 1421, 1427-28 n.4

(8th Cir. 1988), cert. dismissed, 491 U.S. 914 (1989).

That this single, albeit explicit, reference in the legisla-

tive history to the return of a verdict should outweigh

all of the above would appear to be a rather implausible

proposition. Yet it has served as the basis for two Cir-

cuits to hold that magistrates may accept verdicts. See

Arnoldt (the instant case), App. 6; United States v. Day,

789 F.2d 1217, 1224 (6th Cir. 1986). The Fourth Cir-

cuit in Arnoldt, however, failed to grasp that that section

of the legislative history had been implicitly rejected by

and was inconsistent with the ratio decidendi of Gomez

and Peretz, viz., the rule of ejusdem generis, vide supra.

The conflict with Gomez and Peretz arises because the

snippet of legislative history quoted above is merely illu-

strative of what immediately precedes it in the House

Report, viz., the statement that “placing this authoriza-

tion [additional duties] in an entirely separate subsec-

tion |(b)(3)] emphasizes that it is not restricted in any

Way by any other supecific grant of authority to magis-

trates.” The statement that § (b) (3) was not to be re-

stricted in any way by the classes of duties enumerated

in the other sections is in direct conflict with Gomez and

Peretz, which were grounded in the requirement that

s (b) (3) be construed as applying,only to the same gen-

eral class as those enumerated, see, e.g., Gomez, 109 S.Ct.

at 2245 (“reasonably should bear some relation to”), and

is in conflict a fortiori with Freytag, 111 S.Ct. at 2637

(“specifically enumerated duties . . . provided the outlines

for the scope of the general grant”). Therefore, Arnoldt

is fatally inconsistent with this Court’s prior decisions.

Ill. CONSENT

The analysis above concerned whether the Act permits

a magistrate to accept a verdict in a felony case if the

defendant affirmatively consents. If this Court decides

that the Act does, it must next address the question

whether affirmative consent is a necessary component of

the Act’s grant of authority, i.e., it must decide whether

the Act’s grant of authority is limited to circumstances

where the defendant affirmatively consents or whether it

includes also circumstances where, ¢.g., the defendant

merely fails to object, which is what actually happened in

the instant case.’ Peretz and Gomez require “consent.”

The question is what constitutes “consent” within the

meaning of the Act.’®

Peretz describes how Gomez applied the rule of ejusdem

generis to the question of consent (just as it was applied

to the question of scope, vide supra) :

Carefully reviewing the duties that magistrates were

expressly authorized to perform, we focused on the

fact that those specified duties that were comparable

to jury selection in a felony trial could be performed

only with the consent of the litigants. The legisla-

tive history of the statute also emphasizes the crucial

nature of the presence or absence of the litigants’

consent. We noted that, in 1968 when magistrates

were empowered to try “minor offenses/” the exercise

14 [t will be assumed in the analysis, infra, that the reasoning

which applies to the determination of whether affirmative consent

is a necessary component of the Act’s grant of authority for a

magistrate to perform a particular duty is independent of the

nature of that duty, i.e., that the reasoning employed by this Court

thus far in its interpretation of the Act applies to the instant ques-

tion as well. In principle, the “degree” of consent required need

not necessarily be independent of the nature of the duty; for ex-

ample, this Court could read into the Act a sliding scale whereby,

under the balancing test, Peretz, 111 S.Ct. at 2668, the degree of

consent that is necessary increases as the magnitude of the de-

fendant’s interest (as determined from the nature of the duty)

increases. So it is probably premature to insert such a complexity

into the instant proceedings at the cert. stage, it will not be done,

and what may prove to be an overly simplistic analysis will be

employed in this Petition.

15 What it means in other contexts, e.g., waiver of the constitu-

tional right to an Article III judge, see n.17, infra, is a different

question.

of that jurisdiction in any specific case was condi-

tioned upon the defendant’s express written consent.

Similarly, the 1976 Amendment provided that a mag-

istrate could be designated as a special master in any

civil case but only with the consent of the parties.

And in 1979, when Congress enlarged the magis-

trate’s criminal jurisdiction to encompass all misde-

meanors, the exercise of that authority was subject

to the defendant’s consent ... A critical limitation

on this expanded jurisdiction is consent. As amended

in 1979, the Act states that “neither the district

judge nor the magistrate shall attempt to persuade or

induce any party to consent to reference of any civil

matter to a magistrate.” [T]he magistrate’s crim-

inal trial jurisdiction depends on the defendant’s spe-

cific, written consent.

111 S.Ct. at 2666-67 (citations and internal quotes

omitted, footnote merged into text). Peretz continued:

This case differs critically from Gomez because pe-

titioner’s counsel, rather than objecting to the Mag-

istrate’s role, affirmatively welcomed it. The consid-

erations that led to our holding in Gomez do not lead

to the conclusion that a magistrate’s “additional

duties” may not include supervision of jury selection

when the defendant has consented.

* * * *

... [W]ith the parties’ consent, a district judge may

delegate to a magistrate supervision of entire civil

and misdemeanor trials. These duties are comparable

in responsibility and importance to presiding over

voir dire at a felony trial.

We therefore conclude that the Act’s “additional

duties” clause permits a magistrate to supervise jury

selection in a felony trial provided the parties con-

sent, !1°)

* * * *

16 This sentence is immediately followed by:

In reaching this result, we are assisted by the reasoning of the

Courts of Appeals for the Second, Third, and Seventh Circuits,

all of which, following our decision in Gomez, have concluded

In sum, the structure and purpose of the Federal

Magistrates Act convince us that supervision of voir

dire in a felony proceeding is an additional duty that

may be delegated to a magistrate under 28 U.S.C.

$ 636(b) (3) if the litigants consent. The Act evinces

a congressional belief that magistrates are well quali-

fied to handle matters of similar importance to jury

selection but conditions their authority to accept such

responsibilities on the consent of the parties.... [A]

defendant . . . need only decline to consent .

However, when a defendant does consent to the mag-

istrate’s role, the magistrate has jurisdiction to per-

form this additional duty.

Id, at 2667-69 (citations, internal quotes, and footnote

omitted). Therefore, ‘consent’ for purposes of interpre-

tation of the Act means affirmative consent.'* '*

that the rationale of that opinion does not apply when the de-

fendant has not objected to the magistrate’s conduct of the

voir dire.

111 S.Ct. at 2667-68 (citations omitted, emphasis added). This

Court therefore noted, but did not adopt, the “fails to object’? mean-

ing of “‘consent.”

17“Consent” for purposes of determining whether a defendant

has waived any constitutional infirmity in the Act appears to mean

“fails to object,” see n.15, supra, at least when the actions of the

magistrate are effectively reviewable by the judge. See part IV of

Peretz, 111 S.Ct. at 2669-71. This Cour} has not helped matters by

using the same word (“consent’’) to convey different meanings in

different parts of Peretz (compare parts II and III with part IV)

without flagging what it was doing, and it has made matters even

worse by merging those meanings in favor of the part IV meaning

in its closing statement in part V that “permitting a magistrate to

conduct the voir dire in a felony trial when the defendant raises no

objection is entirely faithful to the congressional purpose in enact-

ing and amending the Federal Magistrates Act,” id. at 2671 (em-

phasis added, footnote omitted). Its reference to the purpose of the

Act in a context in which it was actually referring instead to the

question of waiver can result in misunderstanding in the lower

courts, see, e.g., United States v. Martinez-Torres, 944 F.2d 51, 52

(1st Cir. 1991), and should be corrected.

18 For further discussion of this espect of the legislative history

of the Act, see TPO, Inc. v. McMillen, 460 F.2d 348 (7th Cir. 1972),

As the consent in Peretz itself was affirmative but not

written, it would appear that the requirement for affirma-

tive consent may be satisfied by oral consent. Contra

Peretz, 111 S.Ct. at 2666-67 (repeated references to writ-

ten consent); Fed.R.Civ.P. 73(b) (interpreting § 636(c)

(recall ejusdem generis) to require written consent).

This Court needs to clarify the nature of the affirmative

consent that is required.

Finally, two Circuit decisions (one of which was post-

Peretz) conflict with Gomez and Peretz. See United

States v. Sawyers, 902 F.2d 1217, 1220 and n.2 (6th

Cir. 1990) (citing Gomez for the proposition that a mag-

istrate may accept a verdict when no objections are

made), cert. denied, 111 S.Ct. 2895 (1991): United States

v. Jones, 9388 F.2d 737, 744 (7th Cir. 1991) (citing

Peretz for the proposition that a magistrate may conduct

jury selection when no objection is made). Correction by

this Court is necessary.

IV. FED.R.CRIM.P. 25

There is a split between the Third, the Sixth and (im-

plicitly) the Fourth Circuits (instant case) with regard

to whether Fed.R.Crim.P. 25 limits the scope of § 636

(b) (3), see “Consistency with the Laws of the United

States,” supra, which needs to be resolved by this Court.

endorsed by Wingo v. Weddiny, 418 U.S. 461, 470 n.10 (1974).

See also H.R. Rep. No. 1629, 90th Cong., 2d Sess., reprinted in 1968

U.S. Code Cong. & Ad. News 4252, 4254 (“knowledgeable waiver’) :

S. Rep. No. 74, 96th Cong. 6, 7, 14, reprinted in 1979 U.S. Code

Cong. & Ad. News 1469, 1474 (“consents to such trial in writing :”

“written consent requirement”), 1475 (“affirmative consent :” “con-

sent in writing’), 1482 (“truly voluntarily consent”): H.R. Conf.

tep. No. 444. 96th Cong. 8, reprinted in 1979 U.S. Code Cong. &

Ad. News 1487, 1489 (“voluntariness, knowingness, and willingness

of the consent’’).

V. CONSTITUTIONAL INFIRMITY

Peretz left in a state of some uncertainty the question

whether 28 U.S.C. § 636(b) (3) would be consistent with

Article III under those circumstances vel non where a

magistrate may accept a verdict in a felony trial. Part IV

of Peretz, 111 S.Ct. at 2669, begins with some apparently

unambiguous and definitive statements to the effect that

even a defendant who merely fails to object has no Article

III protections.’ Peretz, however, then goes on to under-

cut those statements. It assumes that, because of struc-

tural protections provided by Article III, failure to object

(or even a defendant’s affirmative consent) really cannot

eliminate Article III infirmities of the Act generally.*’ It

then explains at length why, even if there were infirmi-

ties, consent could eliminate them in the circumstances of

Peretz (jury voir dire) because those actions of the

magistrate were reviewable by the judge:

The decision whether to empanel the jury the selec-

tion of which a magistrate has supervised . . . re-

mains entirely with the district court. Because the

entire process takes place under the district court’s

total control and jurisdiction, there is no [Article

III| danger.

. The reasoning in Justice Blackmun’s concur-

ring opinion |in Raddatz] is controlling here:

|T|/he handling of suppression motions in-

variably remains completely in the control of the

federal district court. ... [T]he judge may freely

reject the magistrate’s recommendation. He may re-

hear the evidence in whole or in part. He may call

for additional findings or otherwise recommit the

matter to the magistrate with instructions.

|T]he district judge is waiting in the wings, fully

12 An assumption analogous to that made in n.14, supra, is made

here.

2° For an elaboration of this thesis, see Peretz, 111 S.Ct. at

2676-77 (Marshall, J., dissenting).

able to correct errors. . .. [T]he judges retain com-

plete supervisory control over the assistants’ activi-

ties. .. . If a defendant in a future case... re-

quest|s] review, nothing in the statute precludes a

district court from providing the review that the

Constitution requires. Although there may be other

cases in which de novo review by the district court

would provide an inadequate substitute for the Ar-

ticle III judge’s actual supervision of the voir dire,

the same is true of a magistrate’s determination in

& suppression hearing. ...

111 S.Ct. at 2669-71 ‘citations and internal quotes

omitted).*! The same is not true, however, with regard

to acceptance of a verdict by a magistrate. There, review

would not even rise to being insufficiently adequate; it

would be effectively nonexistent. And it would be very

unrealistic to expect that a judge would “replay” an en-

tire trial as he might a suppression hearing or jury voir

dire. See “Reviewability” discussion, supra. Therefore,

Article TIT nrotections may well be implicated in the in-

stant case. “Indeed, this problem admits of no easy solu-

tion.” Peretz, 111 S.Ct. at 2677 (Marshall, J., dissent-

ing). The Fourth Circuit’s decision was conclusory and

did not engage this issue. (App. 5, 6)

This Court needs to define the parameters of any im-

plication of Article III structural protections. It did not

do so in Peretz, and it avoided the question in Freytaq

(Appointments Clause case) :

Petitioners would have us .. . adopt|] a general

rule that “structural” constitutional rights as a class

“! The Ninth Circuit has interpreted Peretz’s explanation of why

the correctness vel non of its assumption (consent does not cure

infirmities), supra, is inconsequential. It did so, however, in a

manner that may actually modify Peretz’s holding: “The Court in

Peretz . . . effectively held that the conduct of voir dire by a

magistrate does not implicate Article III structural protections, for

the Court emphasized that the district courts retain ‘total control

and jurisdiction’ over the process.” United States v. Judge, 944

F.2d 523, 525 (9th Cir. 1991).

simply cannot be forfeited ... The Court neither

accepts nor rejects that proposal. ... Thus, when

there occurs a similar forfeiture of an Appointments

Clause objection—or of some other allegedly struc-

tural constitutional deficiency—the Courts of Appeals

will remain without guidance as to whether the for-

feiture must, or even may, be disregarded.

Freytag, 111 S.Ct. at 2646 (Sealia, J., concurring in the

judgment: joined by O’Connor, Kennedy, Souter, JJ.).

The Courts of Appeals remain without guidance in the

Magistrates Act context as well.

VI. THE DOUBLE JEOPARDY CLAUSE AND “COM-

POUND-COMPLEX FELONIES”

As the Fourth Circuit noted in its opinion, Arnoldt,

App. 8-9, it is undisputed that petitioner’s successive

prosecution under RICO (‘‘Arnoldt II”) satisfies the tra-

ditional test of Blockburger v. United States, 284 U.S.

299, 304 (1932): “‘where the same act or transaction

constitutes a violation of two distinct statutory provi-

sions, the test to be applied to determine whether there

are two offenses or only one is whether each provision

requires proof of an additional fact which the other does

not.” However, subsequent to petitioner’s convictions, this

Court fashioned a new rule in Grady v. Corbin, 110 S.Ct.

2084, 2093 (1990):

[A] technical comparison of the elements of the two

offenses as required by Blockburgey does not protect

defendants sufficiently from the burdens of multiple

trials... [A] subsequent prosecution must do more

than merely survive the Blockburger test... {T]he

Double Jeopardy Clause bars any subsequent prose-

cution in which the government, to establish an es-

sential element of an offense charged in that prose-

cution, will prove conduct that constitutes an offense

for which the defendant has already been prosecuted.

In Grady, the defendant was indicted for reckless

manslaughter criminally negligent homicide arising from

an automobile accident in which he had been cited for

driving while intoxicated and failure to keep to the right

of the median. Prior to indictment, the defendant had

pleaded guilty to the citations. Following indictment, he

sought a writ of prohibition barring prosecution on the

manslaughter /homicide charges, on the ground that such

prosecution would violate the Double Jeopardy Clause.

The State conceded that two of the three reckless

negligent acts uyon which it would rely at trial were

those forming the basis of the traffic convictions: driving

while intoxicated and failure to keep to the right of the

median. The New York Court of Appeals granted the

writ, holding that even though the second prosecution

“passed” the test of Blockburger, it was nonetheless

barred by the “pointed dictum” of J/linois v. Vitale, 447

U.S. 410 (1980).

This Court affirmed, articulating the seemingly bright-

line rule set forth above, Grady, 110 S.Ct. at 2093.

The application of Grady to the facts of this case is

readily apparent. In count 1 of petitioner’s second indict-

ment, the government alleged eight predicate acts of

racketering in support of its RICO charge, 18 U.S.C.

§ 1962‘c), and in count 2 of the indictment, the govern-

ment re-alleged these predicate acts in support of its

RICO conspiracy charge, 18 U.S.C. § 1962(d). The first

four such acts were those forming the basis of petitioner’s

convictions on counts 1, 3, 4 and 5 of Arnoldt I. Under

18 U.S.C. $ 1962(e) and (d), App. 27, one essential ele-

ment of the substantive and conspiracy offenses is that

“during the time alleged in the indictment ... the de-

fendant engaged in a pattern of racketeering activity

composed of at least two acts of racketeering.” Thus,

petitioner’s prosecution on both RICO charges in Arnoldt

IT, counts 1 and 2, was prohibited under the holding and

rationale of Grady, since “to establish an essential ele-

ment of offense!s! charged in that prosecution,” id. at

2093, v.¢., predicate acts of racketeering, “the government

will prove conduct that constitutes offense/s] for which

the defendant has already been prosecuted,” id., ie.,

counts 1, 3, 4 and 5 of Arno'd: I.

eel

The Fourth Circuit rejected this analysis, App. 9-13,

holding that in the context of “compound-complex felo-

nies” or “ ‘multilayered’ instances of criminal conduct

invariably cecurring at different places and times,” App.

11, the double jeopardy issue was governed by Garrett

v. United States, 471 U.S. 773 (1985), a case predating

Grady by five years. The court’s holding was grounded

in policy concerrs, v.e., that “. .. prosecutions under stat-

utes such as RICO... cal! for a calculus reflecting the

concerns expressed in Garrett,” App. 11, rather than the

concerns expressed in Grady, which would in this context,

the court believed “. . . unduly infringed prosecutorial dis-

cretion and effectively ‘force the Government’s hand’ with

respect to prosecution under RICO,” App. 12, citing

Garrett, 471 U.S. at 790.

Relying upon the decisions of the Third and Eleventh

Circuits in United States v. Pungitore, 910 F.2d 1084,

1111 (3rd Cir. 1990), cert. denied, 111 S.Ct. 2009, 2010

(1991); United States v. Gonzalez, 921 F.2d 1530, 1535-

39 (11th Cir.), petition for cert. filed, No. 90-7857 (U.S.

April 29, 1991), the Fourth Circuit disposed of petition-

er’s claims in conclusory fashion despite its recognition

that “. . . Grady does not limit itself to a specific class

of crimes.” (App. 11.)

We do not believe that the Supreme Court intended

Grady to compel such a result... . Thus, in the con-

text of successive prosecutions for a_ substantive

RICO violation and for the predicate crimes used to

prove RICO, the double jeopardy analysis is con-

trolled by Gaviett. See Pungitore, 910 F.2d at 1109

(“{T]he reasoning in [Grady] logically extends only

to offenses arising from a single discrete event. We

do not think that the Supreme Court sneant to imply

that the double jeopardy clause forecloses successive

prosecutions In cases of compound-complex felonies

such as RICO, which involve several criminal acts ¢e-

curring at different times in different places.”

App. 12-13 (footnote omitted).

The reasoning of the Fourth Circuit in the instant case,

as well as the Third and Eleventh Circuits in Pungitore

and Gonzalez, leads to a result which may arguably be

sound from a policy standpoint but is constitutionally

infirm under the analysis of Grady. This issue needs to

be addressed and resolved by this Court, for the guidance

not only of the district and circuit courts but also of

government prosecutors who may be “setting and pursu-

ing [their] strategy,” App. 12, where the Double Jeop-

ardy Clause permits no such strategy to be employed.

CONCLUSION

For the foregoing reasons, the petition for writ of cer-

tiorari should be granted.

Respectfully submitted,

LEONARD KAPLAN

Assistant Federal Public

Defender

Office of the Federal Public

Defender

2307 United States Courthouse

500 Quarrier Street

Charleston, WV 25301

(304) 343-9551

(FTS) 930-5165

Counsel of Record for Petitioner

in Arnoldt v. U.S.A.

BARBARA H. LUPTON

(Admitted to Supreme Court as

Barbara H. Fleisher)

MASTERS & TAYLOR, L.C.

4th Floor, Peoples Bldg.

179 Summers Street

Charleston, WV 25301

(304) 342-3106

Counsel of Record for Petitioner

in Arnoldt,a/k/a

Shagg v. U.S.A.

APPENDIX

sche inteeeicailic Oo oe ih lll

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 89-5043

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

GARLAND ARNOLDT,

Defendant-A ppellant.

No. 89-5448

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

Vv.

GARLAND ARNOLDT, a/k /a / Shagg,

Defendant-A ppellant.

Appeals from the United States District Court

for the Southern District of West Virginia, at Charleston,

Charles H, Haden, II, Chief District Judge.

(CR-88-134-2, CR-89-3-2 )

Argued: June 7, 1990

Decided: October 11, 1991

Before RUSSELL, WILKINSON, and WILKINS, Cir-

cuit Judges.

Affirmed in part, vacated in part, and remanded by pub-

lished opinion. Judge Wilkins wrote the opinion, in which

Judge Russell and Judge Wilkinson joined.

COUNSEL

ARGUED: Barbara H. Lupton, Hunt & WILSON,

Charleston, West Virginia, for Appellant. Hunter P.

Smith, Jr., Assistant United States Attorney, Charleston,

West Virginia, for Appellee. ON BRIEF: Hunt L.

Charach, Federal Public Defender, Charleston, West Vir-

ginia, for Appellant. Michael W. Carey, United States

Attorney, Charlesten, West Virginia, for Appellee.

OPINION

WILKINS, Circuit Judge:

The issues raised by appellant after convictions in two

separate trials have been consolidated on appeal. For

purposes of clarity the two trials are identified as Ar-

noldt I and Arnoldt IJ. In Arnoldt J appellant contends

that the district court erred in designating a United

States Magistrate’ to preside over the return of the

jury’s verdict and in failing to make specific factual

findings before imposing a fine. In Arnoldt II he asserts

that his trial violated the double jeopardy clause of the

fifth amendment to the United States Constitution and

1Purusant to Act of December 1, 1990, Pub. L. No. 101-650,

§ 321, 104 Stat. 5117, United States Magistrates appointed under

28 U.S.C.A. § 631 (West Supp. 1991) are now known as United

States Magistrate Judges.

that the district court erred in finding that he was an

organizer or leader of a criminal activity as defined in

the sentencing guidelines. He also asserts that the dis-

trict court erred in certain evidentiary rulings, in in-

structing the jury, and in refusing to grant a mistrial.

We affirm in part, reverse in part, and remand.

A. Arnoldt I

Arnoldt was indicted in August 1988 for one count of

conspiracy to distribute cocaine, 21 U.S.C.A. § 846 (West

Supp. 1991), four counts of distribution of cocaine, 21

U.S.C.A. $ 841(a) (West 1981), one count of carrying

a firearm during and in relation to a drug trafficking

crime, 18 U.S.C.A. § 924(¢) (1) (West Supp. 1991), one

count of possession of ammunition by a convicted felon,

18 U.S.C.A. § 922(g)(1) (West Supp. 1991), and one

count of possession of a firearm by a convicted felon, id.

He was convicted of the conspiracy count and three of

the distribution counts. He was acquitted of one count

of distribution and of carrying a firearm during and

in relation to a drug trafficking crime.”

Following closing argument and the charge to the jury,

the district judge announced that he was delegating the

responsibility of presiding over the return of the jury’s

verdict to a United States Magistrate. Arnoldt did not

object to this delegation. The magistrate subsequently

received the verdict, polled the jury, and remanded the

defendant to custody.

At the sentencing hearing, the district court determined

that Arnoldt’s offense level was 26, which, combined with

criminal history category IV, produced a_ sentencing

- The district court had previously granted Arnoldt’s motion to

sever the possession of ammunition and firearm counts and Arnoldt

was convicted of these counts at a subsequent trial.

guidelines range of 92-115 months. The district court

imposed a sentence of 98 months plus two concurrent 60-

month sentences for the ammunition and firearm viola-

tions. Additionally, the district court imposed a $5,000

fine and a $300 special assessment.

B. Arnoldt II

On January 10, 1989, Arnoldt was named in 14 counts

of an &5-count indictment resulting from an investiga-

tion of the Pagan Motorcycle Club. Count 1 alleged

that Arnoldt violated 18 U.S.C.A. § 1962(c) (West 1984)

of the Racketeer Influenced and Corrupt Organizations

Act (RICO); Ceunt 2 alleged that he participated in

a RICO conspiracy, 18 U.S.C.A. § 1962(d) (West Supp.

1991); Counts 7, 10, 13, and 71 alleged that he distrib-

uted controlled substances, 21 U.S.C.A. § 84(a) (1); and

Counts 5, 6, 8, 9, 11, 12, 67, and 69 alleged that he

engaged in interstate travel in aid of racketeering, 18

U.S.C.A. $ 1952(a) (3) (West Supp. 1991). The jury

convicted Arnoldt of all counts.

Counts 5 through 13 represented conduct occurring

before November 1, 1987 and thus were pre-guidelines

offenses. Because the offenses represented in Counts 1,

2, 67, 69, and 71 were committed after November 1,

1987, the sentences were governed by the Sentencing

Reform Act of 1984, 18 U.S.C.A. $$ 3551, et seq. (West

1985 & Supp. 1991), and the sentencing guidelines prom-

ulgated by the United States Sentencing Commission.

The guidelines counts were grouped pursuant to U.S.S.G.

‘ 3D1.2.* The base offense level for the underlying activ-

ity (distribution of over 1,990 grams of cocaine) was

26. U.S.S.G. $ 2D1.1(a) (3). This level was increased

by 2 for possession of a firearm during the commission

of a drug offense, U.S.S.G. § 2D1.1(b) (1), and by 2 for

4 All references are to the October, 1988 version of the Guidelines

Manual.

obstruction of justice, U.S.S.G. §3C1.1. The district

court also found that Arnoidt was an organizer or leader

of a criminal activity that involved five or more partici-

pants or was otherwise extensive, U.S.S.G. § 3Bl1.1(a),

and therefore further increased his offense level by 4,

resulting in an adjusted offense level of 34. Offense level

34 combined with criminal history category V produced

a sentencing guidelines range of 235-293 months. The

district court sentenced Arnoldt to 292 months imprison-

ment.

As to the pre-guidelines counts, the court imposed five

years imprisonment each on Counts 5, 6, 8, 9, 11, and

12 to be served concurrently with each other and with

the guidelines sentence, 15 years imprisonment on Counts

7 and 10 to be served concurrently with each other and

with the guidelines sentence, and 20 years imprisonment

on Count 13 to be served concurrently with the guide-

lines sentence. In addition, the district court ordered the

sentence imposed in Arnoldt IT to be served concurrently

with the sentence in Arnoldt I.

IT.

Arnoldt contends that designating a magistrate to pre-

side over the return of the jury’s verdict in Arnoldt I

violated the Federa! Magistrates Act, 28 U.S.C.A. §§ 631,

et seq. (West Supp. 1991), and Article III of the United

States Constitution. He bases his argument on Gomez

v. United States in which the Supreme Court unani-

mously held that the Federal Magistrates Act does not

authorize a magistrate to preside over jury selection in

a felony trial when a defendant objects. 490 U.S. 858,

875-76 (1989). Because jury selection was not specifi-

cally designated as a permissible duty under the Act, the

Gomez Court’s inquiry was whether jury selection was

authorized by the residual provision of the Act which

provides that “|a] magistrate may be assigned such

additional duties as are not inconsistent with the Con-

stitution and laws of the United States.” 28 U.S.C.A.

$ 636(b) (3). The Court found that the Act did not

authorize magistrates to preside over the selection of the

jury, concluding that “[t]he absence of a specific ref-

erence to jury selection in the statute, or indeed, in the

legislative history, persuades us that Congress did not

intend the additional duties clause to embrace this func-

tion.” 499 U.S. at 875-76 (footnote omitted). Thus,

because the magistrate lacked authority to preside over

jury selection in the face of a defendant’s objection and

because this error was not harmless, the Court reversed

Gomez’s conviction. |

The Court recently returned to this issue in Peretz v.

United States, 111 S. Ct. 2661 (1991).4 In Peretz, the

Court held that the “additional duties” clause of the

Federal Magistrates Act permits the delegation of jury

selection in a felony trial to a magistrate when the de-

fendant consents to the delegation. /d. at 2668. The

Court also concluded that if a defendant fails to object

to the delegation of jury selection to a magistrate, the

defendant has no constitutional right to have an Article

III judge preside. Jd. at 2669.

Arnoldt first claims that allowing a magistrate to

preside over the return of the jury’s verdict violated his

right to have an Article III judge preside over his felony

trial. Recognizing that criminal defendants often waive

substantive constitutional rights by their failure to make

a timely assertion of the right, the Peretz Court held

that because the defendant had “raised no objection to

4 Following oral argument of Arnoldt’s appeals the Supreme Court

granted certiorari in Peretz to address the questions of whether dele-

gation of jury selection in a federal felony trial to a magistrate vio-

lated the Federal Magistrates Act or Article II] when the defendant

consented to the delegation and, if so, whether the defendant’s con-

sent constituted a waiver of the violation. 111 S. Ct. 781 (1991).

We held this opinion in abeyance pending a decision by the Supreme

Court. ,

ee ————EE——EEaEeEEEE——

the judge’s absence” he had waived his right to demand

the presence of an Article III judge. /d. Similarly, Ar-

noldt failed to object to the delegation of authority to

the magistrate to preside over the return of the jury’s

verdict and, therefore, waived any resulting constitu-

tional error. We conciude that the reasoning of Peretz

controls our disposition of this argument.

Next, Arnoldt asserts that the Federal Magistrates Act

prohibits magistrates from presiding over the return of

the jury’s verdict. However, Arnoldt overlooks the spe-

cific approval of this function in the legislative history

of the ‘additional duties” clause. A House Report on the

1976 amendments to the Act explained that the ‘“addi-

tional duties” clause “would permit, for example, a mag-

istrate to review default judgments, order the exonera-

tion or forfeiture of bonds in criminal cases, ond accept

returns of jury verdicts where the trial judge is un-

available.” H.R. Rep. No. 1609, 94th Cong., 2d Sess. 12,

reprinted ‘nr 1976 U.S. Code Cong. & Admin. News 6162,

6172 ‘emphasis added). Heeding this “clear legislative

command” when confronted with identical facts, the Sixth

Circuit held that the district court did not err in per-

mitting a magistrate to receive the verdict in a criminal

case, United States v. Day, 789 F.2d 1217, 1224 (6th

Cir, 1986) (“In accepting that verdict, the magistrate

performed a function contemplated by Congress. .. .”);

see Koectemba v. G. D, Searle & Co., 707 F. Supp. 1517,

1529 (D. Minn. 1989) (eiting H.M. Rep. No. i609 and

stating that “{dlefendant does not dispute the power

of the Magistrate to accept the jury’s verdict’). More-

ever, becavse Arnoldt waived his constitutional right to

have an Article ITT judge preside, no constitutional con-

siderations preclude the district court from delegating

this duty to the magistrate. Peretz, 111 S. Ct. at 2667;

Virgin Islands v. Willams, 892 F.2d 305, 311 (3d Cir.

L989), cert. dented, 110 S, Ct. 2211 (1999). Conse-

quently, we tind that the delegation of authority to pre-

side over the return of the verdict qualifies as an “addi-

tional duty” under section 636(b) (3).

ITT.

After the parties filed their briefs but prior to oral

argument the Supreme Court announced its decision in

Grady v. Corbin, 110 S. Ct. 2084 (1990). At oral argu-

ment we requested that counsel provide supplemental

briefing regarding the double jeopardy issue.’

The double jeopardy clause of the fifth amendment pro-

vides that a defendant shall not “be subject for the same

offence to be twice put in jeopardy of life or limb.” U.S.

Const. amend. V. The clause “protects against a second

prosecution for the same offense after acquittal. It pro-

tects against a second prosecution for the same offense

after conviction. And it protects against multiple punish-

ments for the same offense.” North Carolina v. Pearce,

395 U.S. 711, 717 (1969) (footnotes omitted). Tradi-

tionally, claims of double jeopardy were analyzed by ref-

erence to the analysis employed in Blockburger v. United

States, 284 U.S. 299, 304 (1932): “where the same act

or transaction constitutes a violation of two distinct stat-

utory provisions, the test to be applied to determine

whether there are two offenses or only one is whether

each provision requires proof of an additional fact which

the other does not.”

Grady, however, finding Blockburqger afforded inade-

quate protection to defendants successively prosecuted,

fashioned a new rule. In Grady, defendant Corbin drove

his vehicle across the center line of a road, striking two

oncoming vehicles. The driver of one of the oncoming

vehicles subsequently died as a result of injuries sus-

*"We disagree with the government’s contention that Arnoldt

waived the double jeopardy argument.

tained. Corbin pled guilty to misdemeanor driving while

intoxicated and failing to keep right of the median and

was sentenced to a $350 fine, a $10 surcharge, and a

6-month license revocation. Subsequently, a grand jury

indicted Corbin for reckless manslaughter, vehicular man-

slaughter, criminally negligent homicide, reckless assault

and driving while intoxicated. The Supreme Court af-

firmed the judgment of the New York Court of Appeals

that prosecution of Corbin for these charges was pro-

hibited by the double jeopardy clause. Observing that

the Blockburger test was conceived “‘in the context of

multiple punishments imposed in a single prosecution,’ ”

Grady, 110 S. Ct. at 2090-91 (quoting Garrett v. United

States, 471 U.S. 773, 778 (19851), the Court reasoned

that Blockburaer was forged without appreciation of the

hazards and concerns raised by successive prosecutions.

Id, at 2092.

[A] technical comparison of the elements of the two

offenses as required by Blockburger does not protect

defendants sufficiently from the burdens of multiple

trials.... [A] subsequent prosecution must do mere

than merely survive the Blockburqer test... . {T]he

Double Jeopardy Clause bars any subsequent pros-

ecution in which the government, to establish an

essential element of an offense charged in that prose-

cution, will prove conduct that constitutes an offense

for which the defendant has already been prosecuted.

Id. at 2093. Applying this test to the facts before it,

the Court held that successive prosecution of Corbin,

While permitted under Blockburger, nevertheless violated

the double jeopardy clause, for “the State has admitted

that it will prove the entirety of the conduct for which

Corbin was convicted-—driving while intoxicated and

failing to keep right of the median—to establish essential

elements of the homicide and assault offenses.” Jd. at

2094,

10a

Arnoldt was indicted in Count 1 of Arnoldt IJ for a

RICO violation under 18 U.S.C.A. § 1962(¢c). The in-

dictment alleged that Arnoldt committed eight predicate

acts. The first four predicate acts constituted four counts

of drug-related conduct for which Arnoldt had been con-

victed in Arnoldt I and which occurred between January

and June 1988. The remaining four predicate acts in-

corporated by reference four substantive counts in Ar-

noldt II—three counts alleging cocaine distribution occur-

ring from April to June 1986 and one count alleging

interstate travel in aid of racketeering occurring on June

12, 1988.°

Arnoldt asserts that use of his Arnoldt I convictions as

predicate acts in a subsequent RICO prosecution violates

the double jeopardy clause. He contends that Grady com-

pels reversal of the subsequent RICO conviction because

to establish an essential element of the RICO count (/.e.,

the predicate acts), the government proved conduct con-

stituting offenses for which he had been convicted in

Arnoldt I.

It is undisputed that under the circumstances here the

successive prosecution of Arnoldt satisfies the Block-

burger test. See, e.g., United States v. Grayson, 795

F.2d 278, 283 (3d Cir. 1986) (‘successive prosecutions

for a RICO offense and its underlying predicate offenses

are not inconsistent with the double jeopardy clause’),

cert. denied, 479 U.S. 1054, 481 U.S. 1018 (1987); ac-

cord United States v. Schell, 775 F.2d 559, 568 (4th Cir.

1985), cert. denied, 475 U.S. 1098 (1986) ; United States

v. Boldin, 772 F.2d 719, 728-30 (11th Cir. 1985), modi-

fied on other grounds, 779 F.2d 618, cert. denied, 475

U.S. 1048, 1098, 1110 (1986); United States v. Black,

759 F.2d 71, 73-74 (D.C. Cir. 1985) (per curiam) ;

® Because special interrogatories were not submitted to the jury it

is impossible to know the predicate acts on which the jury relied in

finding Arnoldt guilty of violating RICO.

lla

United States v, Licavoli, 725 F.2d 1040, 1049-50 (6th

Cir.), cert. denied, 467 U.S. 1252 (1984); United States

v. Phillips, 664 F.2d 971, 1009 n.55 (5th Cir. Unit B

1981) (dicta), cert. denied, 457 U.S. 1136, 459 U.S. 906

(1982); United States v. Solano, 605 F.2d 1141 (9th

Cir. 1979), cert. denied, 444 U.S. 1020 (1980).

In Garrett v. United States, 471 U.S. 773 (1985), the

Court held that it was not a violation of the double

jeopardy clause to prosecute a continuing criminal enter-

prise (CCE) offense, see 21 U.S.C.A. § 848 (West Supp.

1991), after a prior conviction for one of the predicate

offenses. The defendant in Garrett was charged in a

March 1981 multi-count drug indictment in the Western

District of Washington. He pled guilty to one count of

importation of marijuana. In July 1981 he was indicted

in the Northern District of Florida on several drug

counts, including a count for engaging in a CCE from

January 1976 to July 1981. At trial, evidence of conduct

underlying the defendant’s prior marijuana importation

conviction was introduced to prove one of the three predi-

cate offenses that must be shown to prove a CCE violation.

The Supreme Court found dubious the defendant’s

argument that the importation conviction was a lesser in-

cluded offense of the CCE. The Court observed that the

lesser included offense doctrine is associated with Brown

v. Ohio, 432 U.S. 161 (1977), which held that when the

misdemeanor of joyriding was a lesser included offense

in the felony of auto theft, a prosecution for the mis-

demeanor barred a prosecution for the felony. However,

the Court in Garrett was unimpressed with the defend-

ant’s reliance on Brown:

Obviously the conduct in which Garrett was

charged with engaging in the [CCE] indictment,

when compared with that with which he was charged

in the Washington indictment, does not lend itself to

the simple analogy of a single course of conduct—

12a

stealing a car—comprising a lesser included misde-

meanor within a felony. Here the continuing crim-

inal enterprise was alleged to have spanned more

than five years; the acts charged in the Washington

indictment were alleged to have occurred on single

days in 1979 and 1980. . . . Whenever it was during

the 5 1/2-year period alleged in the indictment that

Garrett committed the first of the three predicate

offenses required to form the basis for a CCE prose-

cution, it could not then have been said with any

certainty that he would necessarily go ahead and

commit the other violations required to render him

liable on a CCE charge. Every minute that Na-

thaniel Brown drove or possessed the stolen auto-

mobile he was simultaneously committing both the

lesser included misdemeanor and the greater felony,

but the same simply is not true of Garrett.

These significant differences caution against ready

transposition of the “lesser included offense” prin-

ciples of double jeopardy from the classically simple

situation presented in Brown to the multilayered

conduct, both as to time and to place, involved in

this case.

Garrett, 471 U.S. at 788-89." The government main-

tains that double jeopardy analysis for violations of

7 The Court went on, however, to assume that Garrett’s Washing-

ton offense was a lesser included offense in order to reject his double

jeopardy claim on the ground that the CCE offense had not been

completed at the time Garrett was indicted in Washington. Id. at

791-93. The Court affirmed Garrett’s convictions, rebuffing the dou-

ble jeopardy challenge on the basis of Diaz v. United States, 223

U.S. 442 (1912), which involved an initial prosecution for assault

and battery followed by a prosecution for homicide when the victim

eventually died from injuries inflicted in the course of the assault.

The Court in Diaz rejected the double jeopardy claim, holding that

the two prosecutions were not for the same offense. Diaz was cited

in Grady as a permissible exception to the “traditional” double

jeopardy rule applicable “ ‘where the State is unable to proceed on

the more serious charge at the outset because the additional facts

13a

complex, compound statutes is unaffected by Grady and

remains governed by Blockburger and Garrett.

We believe the principles enunciated in Grady govern

the paradigmatic “single course of conduct” case, but that

prosecutions under statutes such as RICO and CCE—

statutes targeted at “multilayered” instances of criminal

conduct invariably occurring at different places and times

—call for a calculus reflecting the concerns expressed in

Garrett. The Third and Eleventh Circuits have adopted

a nearly identical interpretation of Grady, distinguish-

ing successive prosecutions for RICO and its underlying

predicates, which these courts held to be constitutionally

permissible, from Brown and Grady, which involved a

single course of conduct. United States v. Pungitore, 910

F.2d 1084, 1111 (3d Cir. 1990), cert. denied, 111 S. Ct.

2009, 2010, 2011 (1991): United States v. Gonzalez, 921

F.2d 1530, 1535-39 (11th Cir.), petition for cert. filed,

No. 90-7857 (U.S. April 29, 1991).

We recognize that Grady does not limit itself to a spe-

cific class of crimes. We also appreciate the bedrock prin-

ciple underlying the double jeopardy clause itself: “that

the State with all its resources and power should not be

allowed to make repeated attempts to convict an individ-

ual for an alleged offense, thereby subjecting him to em-

barvrassment, expense and ordeal and compelling him to

live in a continuing state of anxiety and insecurity. .. .”

Green v. United States, 355 U.S. 184, 187 (1957). De-

spite these weighty concerns, we believe a contrary result

would unduly infringe prosecutorial discretion and effec-

tively “force the Government’s hand” with respect to

necessary to sustain that charge have not occurred or have not been

discovered despite the exercise of due diligence.’ ” Grady, 110 S. Ct.

at 2090 n.7 (quoting Brown v. Ohio, 432 U.S. 161, 169 n.7 (1977) ).

The Diaz exception is inapplicable here since arguably Arnoldt’s

RICO offense was complete at the time of the Arnoldt J trial because

he had already committed more than two predicate acts. Moreover,

at the time the indictment in Arnoldt I was returned, all of the

predicate acts had occurred.

l4a

prosecution under RICO. Cf. Garrett, 471 U.S. at 790.

We do not believe the Supreme Court intended Grady to

compel such a result. When grappling with a complex,

multilayered-conduct statute such as RICO, the govern-

ment must be given reasonable discretion in setting and

pursuing its strategy. Indeed, here the most recent al-

leged predicate act occurred before, but was not discov-

ered until after, the date of the Arnoldt J indictment.

Without ample discretion, the government would be forced

to either proceed against a defendant for violations that

might later serve as predicate acts and foreclose a RICO

prosecution in the future or allow predicate acts to go

unpunished in anticipation that at some future time the

RICO elements would coalesce.

Thus, in the context of successive prosecutions for a

substantive RICO violation and for the predicate crimes

used to prove RICO, the double jeopardy analysis is con-

trolled by Garrett.. See Pungitore, 910 F.2d at 1109

8 This court recently addressed the application of Grady to a

prosecution for conspiracy to distribute cocaine and heroin under

21 U.S.C.A. § 846 (West Supp. 1991) in which evidence of an episode

of defendant’s possession of cocaine and heroin that had formed the

basis of a previous prosecution for possession with intent to distrib-

ute in violation of 21 U.S.C.A. § 841(a) (1) (West 1981) was intro-

duced as evidence of defendant’s participation in the conspiracy.

United States v. Clark, 928 F.2d 639 (4th Cir. 1991). Concluding

that the evidence of the prior possession did not establish an element

of the second offense, the court held that the subsequent proscution

was not a double jeopardy violation. Jd. at 642. Similarly, the con-

duct prosecuted in Arnoldt I] was used as evidence of the “pattern of

racketeering activity” element of the RICO offense, see United States

v. Hooker, 841 F.2d 1225, 1227 (4th Cir. 1988), but could not, stand-

ing alone, establish an essential element of the RICO offense, see

Clark, 928 F.2d at 642, ie. “that the racketeering predicates are

related, and that they amount to or pose a threat of continued crimi-

nal activity,” H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229,

39 (1989) (emphasis omitted). Moreover, even if the argument

that the prior convictions alone established the RICO pattern element

was deemed persuasive, we conclude that the analysis in Garrett

applies to subsequent prosecutions of multilayered offenses.

15a

(“[{T]he reasoning in [Grady] logically extends only to

offenses arising from a single discrete event. We do not

think that the Supreme Court meant to imply that the

double jeopardy clause forecloses successive prosecutions

in cases of compound-complex felonies such as RICO,

which involve several criminal acts occurring at different

times in different places.” ).

IV.

In Arnoldt I, the district court imposed a fine of $5,000

payable in monthly installments. Arnoldt contends the

district court failed to adequately consider the factors set

forth in 18 U.S.C.A. $3572 (West Supp. 1991). Cf.

U.S.S.G. $5E4.2(d) (listing factors court “shall con-

sider” in determining amount of fine). In United States

v. Harvey, 885 F.2d 181 (4th Cir. 1989), we vacated

and remanded for reconsideration of the fine imposed be-

cause the district court failed to make specific findings

with regard to the factors listed in the predecessor statute

to section 3572. Because the district court imposed the

fine without complying with Harvey, we vacate the sen-

tence and remand for consideration of those statutory

factors.

¥.

Arnoldt next contends that the district court erred in

finding that he was an organizer or leader of a criminal

activity and increasing his offense level by 4. See U.S.S.G.

s 3Bl1.1(a). A determination by the district court of a

defendant’s role in the offense is a factual determination

and is thus reviewable under the clearly erroneous stand-

ard. United States v. Daughtrey, 874 F.2d 213, 218 (4th

Cir. 1989). The sentencing guidelines provide that in de-

termining whether a defendant is an organizer a court

should consider factors that include:

the exercise of decision making authority, the nature

of participation in the commission of the offense, the

16a

recruitment of accomplices, the claimed right to a

larger share of the fruits of the crime, the degree of

participation in planning or organizing the offense,

the nature and scope of the illegal activity, and the

degree of control and authority exercised over others.

U.S.S.G. § 3B1.1, comment. (n.3).

At the sentencing hearing the district court determined

that Arnoldt was an organizer based on his perceived

membership in the “mother club,” the governing body of

the Pagan Motorcycle Club, and his alleged presidency of

the Kentucky chapter of the Pagans. However, because

the government conceded at oral argument that Arnoldt

was not a member of the mother club, we remand on this

issue. Because the record was not adequately developed

we offer no opinion on the significance of Arnoldt’s al-

leged presidency of the local Kentucky chapter.

VI.

In conclusion, we affirm Arnoldt’s convictions and find

his remaining contentions to be without merit. However,

we vacate the sentence imposed in Arnoldt J and remand

for consideration of the statutory factors. We also vacate

the guidelines sentence imposed in Arnoldt J] and remand

for a determination of Arnoldt’s role in the offense.

AFFIRMED IN PART, VACATED

IN PART, AND REMANDED

17a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

Criminal No. 2:89-00003-06

UNITED STATES OF AMERICA,

Plaintiff,

VS.

GARLAND ARNOLDT,

Defendant.

ORDER

[Entered Mar. 23, 1989]

On March 20, 1989, the Defendant appeared in person

and by counsel, Barbara Fleisher, and the Government

appeared by Michael W. Carey, United States Attorney,

and John A. Kessler, Assistant United States Attorney,

for a hearing on pretrial motions filed by the Defendant.

After having carefully considered the motions and the

argument of counsel, the Court ruled, inter alia, as

follows:

1. Denied the Defendant’s motion to dismiss.

2. Instructed counsel concerning procedures to be

followed at trial with regard to evidence which is the

subject of the Defendant’s written motion in limine.

3. Denied the Defendant’s oral motion in limine re-

garding the admissibility of evidence of a prior conviction,

but noted the Defendant’s option to renew such motion.

4. Denied the Defendant’s motion to dismiss or re-

arraign upon the Government’s representation that the

18a

original indictment was signed by the grand jury fore-

person.

5. In response to the Defendant’s motions to strike

nicknames and to exclude the indictment from the jury

room, expressed its intention to redact the indictment

substantially.

The Clerk is directed to send a certified copy of this

Order to counsel of record.

ENTER: March 23, 1989

s/ Charles H. Haden II

CHARLES H. HADEN II

Chief Judge

—

19a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON

Docket No. 2:89-00003-06

Charleston, West Virginia

March 21, 22, 23, 1989

9:00 o’clock a.m.

UNITED STATES OF AMERICA.

- Plaintiff,

GARLAND ARNOLDT,

Defendant.

JURY TRIAL

VOLUME II

TRANSCRIPT OF TRIAL TESTIMONY &

COURT’S INSTRUCTIONS

BEFORE THE HONORABLE CHARLES H. HADEN, II,

UNITED STATES DISTRICT JUDGE

APPEARANCES:

For the Government:

Mr. MICHAEL CAREY,

United States Attorney

Mr. JACK KESSLER,

Assistant United States Attorney

Charleston, West Virginia

For the Defendant:

Ms. BARBARA FLEISHER,

Attorney

Charleston, West Virginia

* + * *

20a

1235] MS. FLEISHER: Your Honor, I have motions

to make outside the presence of the jury.

THE COURT: All right. We will recess and I will

hear defence motions,

THE COURT: Ladies and gentlemen, the Government

has rested, but I’ve given the Government permission to

reopen so that I can read you four different convictions

that occurred in respect to the defendant, which the Gov-

ernment alleges are part of the predicate offenses that

are involved in the racketeering offense here. So I’m

roing to cover these for you.

On January 23rd of this year this Court entered a

judgment of conviction as to Mr. Arno!dt on a charge of

conspiracy to distribute cocaine and three charges of dis-

tribution of cocaine. And I'll go over these charges with

you so you'll be aware particularly of the dates and the

amounts, if any, that were involved.

In Count No. One, the conspiracy charge. it’s charged

as follows: “That from in or about January of 1988 to

on or about, and that was modified to June 22nd of 1988,

in or near Cabell and Putnam counties, West Virginia,

and within the Southern District [236] of West Virginia,

and elsewhere, Garland Arnoldt, the defendant, and other

persons Whose identities are both known and unknown to

the grand jury, did unlawfully and knowingly combine,

conspire, confederate, and agree, and have a tacit under-

standing with each other, to commit offenses against the

United States,” that is, to violate Title 21, United States

Code, Section S41/ai (1), “and the purpose and object of

this conspiracy was knowingly, intentionally, and without

authority to distribute, and to possess with intent to dis-

tribute, cocaine, a Schedule II controlled substance, as

designated by Title 21, United States Code, Section 812

(c), Schedule 2(a! (4), within the Southern District of

West Virginia, and elsewhere, in violation of Title 21,

United States Code, Section 846.” As I say, Mr. Arnoldt

was convicted of that offense, and final judgment was

entered in the court on January 23, 1989,

2la

In addition, he was convicted of three offenses of dis-

tribution, They are as follows, and this particular count

is Count Three: “That on or about April 18, 1988, at or

near Huntington, Cabell County, West Virginia, and

within the Southern District of West Virginia, Garland

Arnoldt, the defendant, unlawfully, knowingly, and with-

out authority distributed approximately one ounce of co-

caine, also known as coke, etcetera, to a person whose

identity is known to the grand jury, in violation of Title

21, United States Code, Section 841 (a) (1).”

The next count, Count Four, “That on or about May 4,

1988, [237] in Putnam County, West Virginia, and within

the Southern District of West Virginia, Garland Arnoldt,

the defendant, unlawfully, knowingly, and without au-

thority distributed approximately 29.40 grams of cocaine,

also known as coke, etcetera, to a person whose identity

is known to the grand jury, in violation of Title 21,

United States Code, Section 841 (aj (1).”

And Count No. Five, finally, “That on or about May

16, 1988, in Putnam County, West Virginia, and within

the Southern District of West Virginia, Garland Arnoldt,

the defendant, unlawfully, knowingly, and without au-

thority distributed approximately 26.56 grams of cocaine,

also known as coke, etcetera, to a person whose identity

is known to the grand jury, in violation of Title zi,

United States Code, Section 841(a) (1).”

And it’s agreed by counsel that you need not hear evi-

dence on these points, because they’re subjects of previous

convictions.

Is that correct?

MS. FLEISHER: Yes, Your Honor. There is one

point, though, that I think we should discuss with the

Court at side bar.

THE COURT: All right.

(Discussion at side bar. )

MS. FLETSHER: Your Honor, actually there’s two

points, First, simply because we were off the record when

22a

we made our agreement about it, I just want to make

sure the record [238] is clear that my agreement to

handle these convictions in this way is, of course, subject

to the legal argument that I made on my motion to dis-

miss at an earlier time before the Court.

THE COURT: Certainly. Noted.

* * * *

23a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

Criminal No. 2:89-00003-06

UNITED STATES OF AMERICA,

Plaintiff,

Vs.

GARLAND ARNOLDT,

Defendant.

ORDER

| Entered Aug. 29, 1989]

Pending before the Court is the motion of the Defend-

ant for judgment of acquittal or, in the alternative, for a

new trial. Inasmuch as the grounds for the motion have

previously been raised by the Defendant and considered

by the Court, the Court finds no basis now for setting

aside the jury’s verdicts or granting a new trial.

Accordingly, the Defendant’s motion for judgment of

acquittal or for a new trial is denied.

The Clerk is directed to send a certified copy of this

Order to counsel of record.

ENTER: August 29, 1989

s’ Charles H. Haden II

CHARLES H. HADEN II

Chief Judge

24a

STATUTES AND RULE INVOLVED

Title 28 U.S.C. § 636

$ 636. Jurisdiction, powers, and temporary assignment

(a) Each United States magistrate serving under this

chapter shall have within the territorial jurisdiction pre-

scribed by his appointment—

(1) all powers and duties conferred or imposed

upon United States commissioners by law or by the

Rules of Criminal Procedure for the United States

District Courts;

(2) the power to administer oaths and affirma-

tions, issue orders pursuant to section 3142 of title

18 concerning release or detention of persons pend-

ing trial, and take acknowledgements, affidavits, and

depositions; and

(3) the power to conduct trials under section

3401, title 18, United States Code, in conformity

with and subject to the limitations of that section.

(b) (1) Notwithstanding any provision of law to the

contrary—

(A) a judge may designate a magistrate to hear

and determine any pretrial matter pending before

the court, except a motion for injunctive relief, for

judgment on the pleadings, for summary judgment,

to dismiss or quash an indictment or information

made by the defendant, to suppress evidence in a

criminal case, to dismiss or to permit maintenance

of a class action, to dismiss for failure to state a

claim upon which relief can be granted, and to invol-

untarily dismiss an action. A judge of the court

may reconsider any pretrial matter under this sub-

paragraph (A) where it has been shown that the

magistrate’s order is clearly erroneous or contrary

to law.

25a

(B) a judge may also designate a magistrate to

conduct hearings, ircluding evidentiary hearings,

and to submit to a judge of the court proposed find-

ings of fact and recommendations for the disposition,

by a judge of the court, of any motion excepted in

subparagraph (A), of applications for posttrial re-

lief made by individuals convicted of criminal of-

fenses and of prisoner petitioners challenging con-

ditions of confinement.

and recommendations under subparagraph (B) witn

the court and a copy shall forthwith be mailed to

all parties.

Within ten days after being served with a copy, any

party may serve and file written objections to such pro-

posed findings and recommendations as provided by rules

of court. A judge of the court shall make a de novo

determination of those portions of the report or specified

proposed findings or recommendations to which objection

is made. A judge of the court may accept, reject, or

modify, in whole or in part, the findings or recommenda-

tions made by the magistrate. The judge may also re-

ceive further evidence or recommit the matter to the

magistrate with instructions.

(2) A judge may designate a magistrate to serve as a

special master pursuant to the applicable provisions of

this title and the Federal Rules of Civil Procedure for the

United States district courts. A judge may designate a

magistrate to serve as a special master in any civil case,

upon consent of the parties, without regard to the pro-

visions of rule 53(b) of the Federal Rules of Civil Pro-

cedure for the United States district courts.

(3) A magistrate may be assigned such additional

duties as are not inconsistent with the Constitution and

laws of the United States.

(4) Each district court shall establish rules pursuant

to which the magistrates shall discharge their duties.

26a

(ec) Notwithstanding any provision of law to the con-

trary—

(1) Upon the consent of the parties, a full-time

United States magistrate or a part-time United

States magistrate who serves as a full-time judicial

officer may conduct any or all proceedings in a jury

or nonjury civil matter and order the entry of judg-

ment in the case, when specially designated to exer-

cise such jurisdiction by the district court or courts

he serves. Upon the consent of the parties, pursuant

to their specific written request, any other part-time

magistrate may exercise such jurisdiction, if such

magistrate meets the bar membership requirements

set forth in section 681(b) (1) and the chief judge

of the district court certifies that a full-time magis-

trate is not reasonably available in accordance with

guidelines established by the judicial council of the

circuit. When there :s more than one judge of a dis-

trict court, designation under this paragraph shall

be by the concurrence of a majority of all the judges

of such district court, and when there is no such

concurrence, then by the chief judge.

2) If a magistrate is designated to exercise civil

jurisdiction under paragraph (1) of this subsection,

the clerk of court shall, at the time the action is

filed, notify the parties of their right to consent to

the exercise of such jurisdiction. The decision of the

parties shall be communicated to the clerk of court.

Thereafter, neither the district judge nor the magis-

trate shall attempt to persuade or induce any party

to consent to reference of any civil matter to a magis-

trate. Rules of court for the reference of civil mat-

ters to magistrates shall include procedures to protect

the voluntariness of the parties’ consent.

(3) Upon entry of judgment in any case referred

under paragraph (1) of this subsection, an aggrieved

party may appeal directly to the appropriate United

27a

States court of appeals from the judgment of the

magistrate in the same manner as an appeal from

any other judgment of a district court. In this cir-

cumstance, the consent of the parties allows a macis-

trate designated to exercise civil jurisdiction under

paragraph (1) of this subsection to direct the entry

of a judgment of the district court in accordance with

the Federal Rules of Civil Procedure. Nothing in

this paragraph shall be construed as a limitation of

any party’s right to seek review by the Supreme

Court of the United States.

(4) Notwithstanding the provisions of paragr aph

(3) of this subsection, at the time of reference to a

magistrate, the parties may further consent to appeal

on the record to a judge of the district court in the

Same manner as on an appeal from a judgment of

the district court to a court of appeals. Wherever

possible the local rules of the district court and the

rules promulgated by the conference shall endeavor

to make such appeal inexpensive. The district court

may affirm, reverse, modify, or remand the magis-

trate’s judgment.

(5) Cases in the district courts under paragraph

(4) of this subsection may be reviewed by the appro-

priate United States court of appeals upon petition

for leave to appeal by a party stating specific objec-

tions to the judgment. Nothing in this paragraph

shall be construed to be a limitation on any party’s

right to seek review by the Supreme Court of the

United States.

(6) The court may, for good cause shown on its

own motion, or under extraordinary circumstances

shown by any party, vacate a reference of a civil

matter to a magistrate under this subsection.

(7) The magistrate shall determine, taking into

account the complexity of the particular matter re-

28a

ferred to the magistrate, whether the record in the

proceeding shall be taken, pursuant to section 753 of

this title, by electronic sound recording means, by a

court reporter appointed or employed by the court to

take a verbatim record by shorthand or by mechani-

cal means, or by an employee of the court designated

by the court to take such a verbatim record. Not-

withstanding the magistrate’s determination, (A)

the proceeding shall be taken down by a court re-

porter if any party so requests, (B) the proceeding

shall be recorded by a means other than a court re-

porter if all parties so agree, and (C) no record of

the proceeding shall be made if all parties so agree.

Reporters referred to in this paragraph may be trans-

ferred for temporary service in any district court of

the judicial circuit for reporting proceedings under

this subsection, or for other reporting duties in such

court.

(d) The practice and procedure for the trial of cases

before officers serving under this chapter, and for the

taking and hearing of appeals to the district court, shall

conform to rules promulgated by the Supreme Court pur-

suant to section 3402 of title 18, United States Code.

(e) In a proceeding before a magistrate, any of the

following acts or conduct shall constitute a contempt of

the district court for the district wherein the magistrate

is sitting: (1) disobedience or resistance to any lawful

order, process, or writ; (2) misbehavior at a hearing or

other proceeding, or so near the place thereof as to ob-

struct the same; (3) failure to produce, after having been

ordered to do so, any pertinent document; (4) refusal to

appear after having been subpenaed or, upon appearing,

refusal to take the oath or affirmance as a witness, or,

having taken the oath or affirmation, refusal to be exam-

ined according to law; or (5) any other act or conduct

of such court. Upon the commission of any such act or

conduct, the magistrate shall forthwith certify the facts

29a

to a judge of the district court and may serve or cause to

be served upon any person whose behavior is brought into

question under this section an order requiring such per-

son to appear before a judge of that court upon a day

certain to show cause why he should not be adjudged in

contempt by reason of the facts so certified. A judge of

the district court shall thereupon, in a summary manner,

hear the evidence as to the act or conduct complained of

and, if it is such as to warrant punishment, punish such

person in the same manner and to the same extent as for

a contempt committed before a judge of the court, or com-

mit such person upon the conditions applicable in the case

of defiance of the process of the district court or miscon-

duct in the presence of a judge of that court.

(f) In an emergency and upon the eoncurrence of the

chief judges of the districts involved, a United States

magistrate may be temporarily assigned to perform any

of the duties specified in subsection (a) or (b) of this

section in a judicial district other than the judicial dis-

trict for which he has been appointed. No magistrate

shall perform any of such duties in a district to which he

has been temporarily assigned until an order has been

issued by the chief judge of such district specifying (1)

the emergency by reason of which he has been trans-

ferred, (2) the duration of his assignment, and (3) the

duties which he is authorized to perform. A magistrate

so assigned shall not be entitled to additional compensa-

tion but shall be reimbursed for actual and necessary ex-

penses incurred in the performance of his duties in ac-

cordance with section 635.

(g) A United States magistrate may perform the ver-

ification function required by section 4107 of title 18,

United States Code. A magistrate may be assigned by a

judge of any United States district court to perform the

verification required by section 4108 and the appointments

of counsel authorized by section 4109 of title 18, United

States Code, and may perform such functions beyond the

a6 ; . ’ , } ‘ °

: rt +L n4 ‘ sat aon 4 2

limits of the United States. A magistrate as-

) ] | Paaeintint hall } . uth sjtxr 4 syfarn

MABSITU OUCTI Ail 1ONS SNali Nave NO AauUultnol) a, U perio} m

11? +) y ul a i y +} > t pr? ha Oe t ‘ T ‘O) ’

Aii' Vil Weiciilli iit Verrivolry | a i Cle n

Title 18 U.S.C. $ 1962

1962. Prohibited activities

y t } ,

I i 4 i ) t i ~ --

! n t (it | i: tt { ni re VY Tro! a

‘

! in r rou conection I

} ryt y ur } ww? ? )” yn hh: ) + ]

4 } ’ ( at WDersof?ll ias al ICiPacled

Y ? Wl } ’ } ? ? nw ? 10)? ) + i+ Te

‘ I ( < Witiiili t Cdalill, ad ) eh oe | ins t i

United States Code, to use or invest, directly or indirectly,

part of such income, or the proceeds of such income,

icquisition of any interest in, or the establishment or

ypperation of, any enterprise which is engaged in, or the

ctivities of which affect, interstate or foreign commerce.

A purchase of securities n the open market for purposes

of investment, and without the intention of controlling or

participating in the control of the issuer, or of assisting

another to do so, shall not be unlawful under this sub-

section if the securities of the issuer held by the pur-

‘haser, the members of his immediate family, and his or

heir accomplices in any pattern or racketeering activity

or the collection of an unlawful debt after such purchase

do not amount in the aggregate to one percent of the out-

standing securities of any one class, and do not confer,

either in law or in fact, the power to elect one or more

directors of the issuer.

(b) It shall be unlawful for any person through a pat-

tern of racketeering activity or through collection of an

unlawful debt to acquire or maintain, directly or indi-

rectly, any interest in or control of any enterprise which

is engaved in, or the activities of which affect, interstate

or foreign commerce.

(¢) It shall be unlawful for any person employed by or

associated with any enterprise engaged in, or the activities

3la

of which affect, interstate or foreign commerce, to conduct

or participate, directly or indirectly, in the conduct of

such enterprise’s affairs through a pattern of racketeering

activity or collection of unlawful debt.

‘ h «1 ] a ley xref yy] ; , se — ~ 1) +

(d) It shall be unlawful for any person to conspire to

violate any of the provisions of subsections’ (a), (bi, or

( OI tnis section

Fed. R. Crim. P. 25

Rule 25. Judge; Disability

(a) DURING TRIAL. If by reason of death, sic!:ness

or other disability the judge before whom a jury tria!

has commenced is unable to proceed with the trial, any

other judge regularly sitting in or assigned 10 the court,

upon certifying familiarity with the record of the trial,

may proceed with and finish the trial.

(b) AFTER VERDICT OR FINDING OF GUILT. If

by reason of absence, death, sickness or other disability

the judge before whom the defendant has been tried is

unable to perform the duties to be performed by the court

after a verdict or finding of guilt, any other judge regu-

larly sitting in or assigned to the court may perform

those duties; but if that judge is satisfied that a judge

who did not preside at the trial cannot perform those

duties or that it is appropriate for any other reason, that

judge may grant a new trial.

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.