Appendix — Marcum v. United States
Supreme Court brief1992
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(2) Supreme Court, U.S.
FILED
hi 16 32 APR 13 4992
OFFICE OF THE CLERK
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1991
JAMES GILBERT MARCUM,
Petitioner,
Vv.
UNITED STATES OF AMERICA,
Respondent.
APPENDIX TO THE
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEAL
FOR THE SEVENTH CIRCUIT
Wm. J. Sheppard
COUNSEL OF RECORD
Elizabeth L. White
Michael R. Yokan
215 Washington Street
Jacksonville, Florida 32202
(904) 356-9661
ATTORNEYS FOR PETITIONER
TABLE OF CONTENTS
APPENDIX A
Charge Conference Excerpts ...
Closing Argument Excerpts:
Joel Hirschhorn, Esquire
(for Michael J. Canino) ....
Lawrence Elliot Hirsch,
Esquire (for David
Leonard Malkin) ........
Wm. J. Sheppard, Esquire
(for James G. Marcum) .....
Michael C. Carr, Esquire
(for the United States) ....
wenn, Gu « ¢ es « & oS © «
Post Jury Charge
nr ¢ <6 os“ “@ «2 & «& ~%
APPENDIX B
Opinion of the Seventh Circuit
Court of Appeals, dated
November 27, 1991
APPENDIX C
Order Correcting Opinion
dated December 9, 1991
-i-
10
12
13
15
20
38
TABLE OF CONTENTS (Continued)
Page
APPENDIX -D
Order Denying Petition
for Rehearing and
Suggestion of Rehearing
En Banc
art to
Charge Conference Excerpts
United States v. Canino,
United States District Court,
Southern District of Illinois,
Case No. 87-40045
(5731) THE COURT: I refuse 13.
There is a pattern instruction on No.
14. Did we not talk about’ this
yesterday?
MR. HIRSCHHORN: We did. It came
up, I was, the government submitted one
and I objected to it because we got back
down to the discussion about Jamaica.
And upon reflection, it seems to me that
the government's instruction which is
not a 404(b) instruction, ought to be
given in some way, either that one or
this one.
(5732] THE COURT: My rulings were
during the course of the trial that the
Jamaican load could be considered as a
substantive offense on count 1. But I
did give an instruction that it was
404(b) matter as far as count 2, so we
have got this dilemma, and my compromise
suggestion was that you have heard
evidence of acts of the defendant other
than those charged in the indictment.
They may be considered by you according
to the limited instruction given by the
Court at the time the evidence was
received, or something to that effect.
MR. BLOOM: Judge, don't you have
to consider as far as the defendant's
instructions 14 and 15, you are talking
about a similar thing in 15.
THE COURT: That's good.
MR. BLOOM: 14 and 15, really if
they are going to be given at all,
should be given almost as one.
MR. CARR: 14 is wrong. We object
to giving 14 because they can consider
evidence that it was not part of an
indictment with respect to count 1.
MR. BLOOM: As long as we are on
this issue, we might as well take up 14
and 15.
THE COURT: I agree with you. I
haven't' seen 15.
MR. BLOOM: That gets us back to
Rivera. Probably going to be the most
cited case.
: MR. HIRSCHHORN: It's more than
just that, Judge. The government is
going to obviously be arguing about
other acts [5733] which were not charged
in the indictment, such as taking the
money into England and other conduct,
not just as to Mr. Canino. Some of the
defendants about events which occurred
prior to 1980.
MR. CARR: I don't want there to be
any misunderstanding. It's the
government's position that taking money
to England is part of the evidence of
count 1, a Continuing Criminal
-2-
Enterprise. We have to show substantial
income and the fact that he is in
possession of that much case would be
evidence.
We also consider it to be evidence
of his involvement in the conspiracy as
alleged in count 2. We would object to
any kind of comment in the presence of
the jury that that's in some way other
act evidence.
MR. BLOOM: How about 15? I mean
14.
THE COURT: Why not say something
to the effect that a combination, like
you have sort of broached here, Mr
Bloom, something to this effect, to the
jury; you have heard evidence of acts of
the defendant, or a defendant or
defendants other than those charged in
the indictment. Now that's true, is
that not right, to that point?
MR. BLOOM: Correct.
THE COURT: All right then can we
say just for openers here that with
regard to that evidence, I instructed
you from time to time that it was
admitted for a particular purpose and
[5734] it may be considered by you for
that limited purpose.
MR. BLOOM: Would the government
have any opposition to the Court's first
sentence, is fine, and just go right
into the defendant's No. 15. 15 appears
like it's a well thought’ limiting
=-3-
instruction, with the lead in that the
Court has just indicated.
THE COURT: All right.
MR. CARR: No that's okay.
MR. BLOOM: So the Court's first
sentence.
THE COURT: The first sentence is a
copy out of 3.01.
MR. CARR: I understand.
THE COURT: Are you following me?
And then this one is 3.11.
MR. CARR: I don't have any
problen.
THE COURT: No it's not either.
MR. BLOOM: Your Honor, how about
the first sentence that the Court just
dictated into the record followed by
defendant's suggested instruction No.
15.
MR. CARR: Judge, that's okay,
first instruction.
THE COURT: Will you redo it
accordingly, volunteer?
MR. CARR: There is a limit.
MR. SHEPPARD: I think you are
totally understanding what is happening
Mr. Bloom. I don't think 14 is going to
be given at all.
MR. BLOOM: I'm not
misunderstanding. I kind of agree
(5734] with Mr. Carr that I don’t think
14 is right as a matter of law.
MR. SHEPPARD: I do and I ask for
it on behalf of Marcum. As to count 2,
we are not here for any reason other
than what's alleged in the indictment.
We are not on trial for anything else
and that's basic fundamental first year
law student stuff and defendant Marcum
does not withdraw defendant's suggested
jury instruction No. 14 and specifically
requests that it be given.
MR. HIRSCH: Your Honor, I would
join in that also on behalf of Mr.
Malkin.
MR. HIRSCHHORN: I do too, Judge.
MR. HIRSCH: Cite the Lyons case,
the antitrust criminal case 670 F.2d 77,
1982 case which Mr. Carr has referred to
from time to time.
MR. BLOOM: What Your Honor came up
with, on behalf of Flynn, I think, I'm
satisfied with Your Honor's suggested
modification of No. 14.
THE COURT: I agree with you, Mr.
Sheppard and Mr. Hirsch, with regard to
that but I instructed them at the time
that your people were not on trial for
any act or conduct not charged in the
-5S-
|
indictment. I said that several
different times. And then went on to
say that I have admitted it for
background or on the issue of intent,
knowledge, plan or what have you.
(5736] MR. SHEPPARD: I agree with
that. I think my problem is that these
are really two different legal
principles. We are discussing two
different legal principles at once. One
of them is the basic right not to be
convicted for any offense for which you
are not on trial and it is not alleged
in an indictment. Under the
constitution, I have a right to be
indicted.
And the second legal principle that
we are grappling with is it 404(b)
evidence and an instruction relating to
at. They are two separate legal
concepts and I respectfully submit that
the jury should be instructed on both of
then.
THE COURT: Okay let's start here
then. We have got to reconcile. You
are not willing to accept the compromise
between the government and what Mr.
Bloom and I have suggested.
MR. SHEPPARD: As to defendant's
requested 15, no objection. But by
doing that, I still say that 14 must be
given. You had added a paragraph to 15.
THE COURT: No we were just going
to add the sentence, the first sentence
MR. SHEPPARD: Maybe.
MR. BLOOM: The Court had dictated
into the record.
THE COURT: The sentence to be
added to 15, Mr. Sheppard, would read
with the first sentence, you have heard
evidence of acts of a defendant or
defendants other than those (5736)
charged in the indictment. I have
instructed you from time to time that
certain evidence has been admitted as to
one defendant and not as to others with
limiting instruction from the Court.
And just go on then with 15.
MR. SHEPPARD: I accept that as a
modification of defendant's requested 15
but I stand on my request for
defendant's requested 14. I think they
are dealing with two different legal
concepts.
MR. CARR: Your Honor, let me
suggest this then. Perhaps the
defendant should submit an instruction
consistent. with the Seventh Circuit
pattern instruction 3.08 which basicaliy
talks about the other evidence and, and
rather than leave it in general terms,
since it is something that they can
consider, even though it has not been
charged in the indictment, under our
rules of evidence it's been admitted as
being pertinent to the issues in this
case. If they want an instruction as to
the limited purpose, then 3.08 should be
given but just to carte blanche say that
they are not on trial for any other, for
Fo
any act not charged in the indictment,
that begs the question.
The issue here is what was that
evidence introduced for? The Court
gives or gave an instruction at the
time. If they want to resubmit it, the
case law is clear that they are entitled
to it and they should do that for that
particular purpose, following 3.08.
[5738] MR. SHEPPARD: As an
additional citation of authority for
defendant's suggested 14, I would cite
to the Court to Stirone.
MR. HIRSCHHORN: And Ex parte Bain.
MR. SHEPPARD: 361 U.S. 212 out of
Lyons out of the Seventh Circuit and
this is what they say. As to the first
point, it is elementary that’ the
defendant can be convicted only of the
offenses with which he is charged in the
™ indictment, not with some other offense
established by the evidence at trial.
That's one legal concept.
Second legal concept that I think
is sought to be covered by defendant's
suggested jury instruction No. 15, is to
accommodate the fact that we have had
404(b) evidence introduced in the trial.
These requests were to get at two
different things.
I have no objection to the
modification of 15 as indicated by the
Court by adding that sentence at the
preface of it, from the beginning of
-8-
defendant's requested 15, but I think in
no way, shape or form does_ the
modification of 15 have anything to do
with defendant's requested 14.
THE COURT: All right and MI
understand your proposition and here is
how I have reconciled that in my mind as
to why I'm going to give 15, Mr.
Sheppard and Mr. Hirsch, as it's to be
corrected. Gentlemen, are you listening
to me; what you are going to do. 15 add
that first sentence.
[5739] MR. HIRSCHHORN: Can we
have that read?
MR. CARR: It's exactly as you read
it before, Judge.
THE COURT: And the reason that I
feel that's adequate is at the time I
gave the limiting instruction, I gave
the very instruction that you are asking
for here on several occasions during the
course of the trial.
MR. BLOOM: We can certainly argue
that.
THE COURT: You can. I gave that.
In fact that's in my bench book. I read
it out of there, every time, I forget
it, and I have read it on several
occasions. So that’s the Court's
position with regard to that.
MR. SHEPPARD: 14 will be refused
then.
THE COURT: 14 is refused.
MR. THOMAS: I join in this
objection. :
MR. HIRSCHHORN: I have a separate
objection with respect to 14 that I need
to address.
THE COURT: Okay, go ahead.
* * +
[5741] THE COURT: Okay and I will
accept your argument as added to Mr.
Sheppard's and Mr. Hirsch's reason for
your wanting to give 14 which I refuse.
And I will given then 5. That is to be
redone, David.
MR. SHEPPARD: You said 5. You
meant 15.
THE COURT: 15. It's late in the
day.
MR. SHEPPARD: I wasn't being
critical. I just wanted to follow.
Closing Argument Excerpts
ite Vv. ino,
United States District Court,
Southern District of Illinois,
Case No. 87-40045
{5882} MR. HIRSCHHORN: But we are
relying on the law in this case. We are
relying on the law that says’ the
-10-
government must prove by a preponderance
of the evidence venue and I suggest to
you venue is not proper for Mr. Canino
to be charged in the Southern District
of Illinois.
We are relying on the law that the
Judge will charge you and this is in a
nutshell, that this was not a single
conspiracy, not a single overall
conspiracy but rather’ several mini
conspiracies, several sprite small
little conspiracies; each conspiracy a
separate buyer and seller relationship;
not, not that Mr. Canino was part of the
overall 600,000 pound conspiracy.
* * +
[5933] I'm going to leave to the
other lawyers to talk about what's a
conspiracy, because they are charged,
their clients are charged in count 2,
put I do want to just argue one aspect
of the conspiracy law as it relates to
Mr Canino. This is clearly technical
but valid defense under the law.
The government has alleged one
single overall conspiracy. We tell you
it is multiple conspiracies. There are
a group of many conspiracies going on.
That's what this evidence is all about.
The Judge is going to tell you you may
not convict the defendants of any other
charge or any other conspiracy alleged
in the event you should conclude that
they have engaged in some _ other
conspiracy. If you are not convinced
beyond a reasonable doubt that a
-lli-
particular defendant knowingly and
intentionally joined the conspiracy
alleged in the indictment, you must find
that defendant not guilty.
In other words, the law permits you
to find the defendant not guilty, if you
determine that what he was doing was
conspiring, separate and apart, from the
Single overall conspiracy. And it is
Clear from Mr. Blair and other witnesses
that there were multiple conspiracies;
that Ron Ball had other customers who
picked up marijuana at the stash house,
and these other customers were kept
Separate and apart and independent of
what was going on and the Jamaican load
is clearly not part of this overall
conspiracy.
a * *
{5941} MR. HIRSCH: I think that
the issue in this case is as far as my
client goes, David Malkin, is whether or
not he is not a member of a conspiracy,
but whether or not he is a member of
that conspiracy for which he has been
indicted. That is the sole issue in
this case, as far as David Malkin goes.
* * 7
[5949] The prosecution has brought
this case in the Southern District of
Illinois. The prosecution has alleged
that there was this huge conspiracy,
because they want it all. They want it
all and they want it here. I don't know
[5950] how many witnesses I called that
-12-
where I asked about the plea agreement
said one paragraph in their agreement
where they say they agree and that they
will cooperate with respect to all
knowledge that they have about criminal
activity in the Southern District of
Illinois and with regard to the people
that I asked that question, they almost
drew a blank. They looked at me like we
don't know anything about the Southern
District of Illinois.
Now with respect to that point, of the
Southern District of Illinois, that
point really ties into whether or not
the government has_ proved beyond a
reasonable doubt that such a conspiracy,
as theorized by the government, actually
existed. Whether or not they have
proved by credible evidence that there
was such a thing as this conspiracy....
[6002] MR. SHEPPARD: And there
has been some evidence with regard to
Marcum that's historical. And that's
all it is is history. And the bulk of
the evidence against Marcum comes out of
the mouths of six witnesses with regard
to 1986.
Then you are gonna read an
instruction on venue and what have you.
And in opening statement I told you
about venue is a little different for
Marcum because these fellas Juenger, and
Bond, and Ingold, and all those folks
are gone from this conspiracy by virtue
of their being arrested six months, six
months before the testimony relating to
Jim Marcum in the latter part of 1986.
-13-
Miia iemeeaiiiiinaimeemmiaiillll
[6003] Now these folks, if indeed,
and I don't believe they did, had
anything to do with the Southern
District of Illinois, they sure enough
didn't have anything to do with it in
1986. There has been a big deal, and
I'm not gonna pull all these maps and
what have you about where these trucks
went. Think about where they were in
1986. They did not get near the
Southern District of Illinois.
So I submit to you with regard to
this venue issue, which you have heard
enough of, and I'm going to shut up
about it, 1986 is a whole different
case.
MR. CARR: I object. That's an
improper statement of the law. The
issue is the charge which charges a
conspiracy between March of 1980 and
1986, and if there is venue for the
charge, not with respect to
participation, then the law says it's
properly brought here.
THE COURT: And I'll so instruct
the jury.
MR. CARR: Thank you, Your Honor.
MR. SHEPPARD: I understand what
the Court will instruct the jury. What
I am saying factually, in 1986, you must
look at it individually for Jim Marcun,
just like you have to look at this case,
individually, for each and every one of
these defendants. A lot of argument
comes from the government, a lot of
-14=-
argument comes with regard to Mr. Canino
on count 1. Forget it as it relates to
Jim Marcum. He isn't charged in that
count. He's only charged in count 2.
[6004] And I submit to you that
when you go back to deliberate, what you
have got to do is separate this count
from that count, and then you got to
separate these several defendants and
look at ‘em individually and separately.
And I'll submit to you, look back at
your notes, recall your collective
recollection about what happened in the
Southern District of Illinois in 1986,
and it's different.
* * ae
[6008] The serious problem is that
the rules are being attempted to be
stretched far beyond anything that I
have ever encountered, far beyond, and
as I said, if my client has_ done
something wrong, nail him according to
the rules, in Pennsylvania, in Florida,
or wherever, but not by this undefinable
crime called conspiracy.
* * *
[6014] And as I have said, if my
client has done something somewhere
else, the federal government will remind
him of it.
* * *
[6064] MR. CARR: My son Tim is a
second grader, and in the cub scouts.
-15-
Tim and I, he is seven years old so now
he is a little older. And Tim and I
used to go out and pick dandelions when
he was about four, out of our front
yard.
When I had Tim helping me when he
was four, the dandelions would be out of
the front yard in about five minutes
because he would run and grab all the
flowers and they would be gone. Great
job but they will be back in two weeks.
So the way you get those things, and Tim
knows now, the way you get ‘em is you
can’t just take the flower. You gotta
kinda get these leaves on the ground
together with the stem and the flower,
and they don't pull out easy. you got
to get a little shovel and kinda loosen
up the dirt, shake it off and then you
get the flower, the stem, the leaves,
the stem that goes down, and all the
little roots and you remove ‘em. Takes
along time. But it's thorough.
Well we did that the first year.
And then the second year I thought about
poison, and talking about the Pekingese,
he would probable die but it'd kill the
weeds so I decided this is they way we
do the dandelions. We'd do it the way
we did the first year and they are back
again the second year.
Well I didn't do ‘em in the back
yard. I thought well, you know, nobody
can see that back there anyway. The
wind blows and the problem that I'm
having in my front yard is [6065] in my
-16-
own back yard. And I didn't take care
of it.
Well you know, that's a lot about
what this case is about. The problem is
right here in our own back yard.
* * *
[6076] You don't have to know that
the marijuana is going to southern
Illinois. What you do have to now is
with respect to one of the violations
here, the marijuana had to [6077] have
gone to Illinois, whether you know it or
not, had to have gone to Illinois, or an
overt act had to have been committed in
Illinois.
What Mr. Hirschhorn did and very
artfully is he said this is what they
are charged with right here and this is
where you have to find venue. Well read
a little closer. It says which
violations include three or more of the
violations as set forth in count 2 of
this indictment, and in these paragraphs
here, well here is count 2. Well count
2 is included. That's a violation.
It's a violation to distribute on each
of these times but it's also a violation
to have conspired, to have combined with
other people over this period of time,
and if the conspiracy itself brings
marijuana into Illinois, then there is
venue here. You can't just forget count
2. That's part of it.
Now I have been over and I went
over to begin with the individual counts
-17-
about how the marijuana actually went
through. I think that it is important
to maybe by analogy suggest what's going
on here. Someone wants to get rid of
someone so they run over to Philadelphia
and they secretly find this person
making a bomb. You grab, you say look,
I want to get rid of this person. Can
you get me one? Yes. He hands him a
bomb. The guy comes to southern
Illinois, plants it in his car and blows
him up, blows him to here after.
Well now they guy in Philadelphia,
come trial day, he [6078] says wait a
minute. I didn't know it was going to
southern Illinois. I had no idea of it.
I didn't even know who it was. I had no
idea who it was that was involved, who
was to be the proposed victin.
That's what they are doing here.
But did you know when you sold the bomb
the general purpose of what was going
on? Well yeah but I didn't know where
it was. Well under their theory, there
has to be two trials. That is not the
law. You don't have to have a trial
here and a trial in Pennsylvania. And
there has also been statements .. .
MR. HIRSCHHORN: Excuse me, Judge.
I object. We have never opted for two
trials under our theory. Counsel knows
that we would not argue for that. I
object. We did not.
THE COURT: I don't...
MR. CARR: Mr. Hirschhorn...
-18-
:
x
}
4
THE COURT: Remember.
MR. CARR: Let them be charged in
Pennsylvania. Mr. Malkin said, let them
be charged in Pennsylvania. Mr.
Sheppard said, let them be charged in
Florida or Pennsylvania, but not here.
Well this is it, folks. The plea
agreements that they have talked about
where they say they can be charged in
all these other counts, there is a
section in the plea agreement that they
didn't read out loud that's underlined.
It says to the extent that the double
jeopardy clause applies.
[6078] Well what does that mean?
That means this is the trial. You have
only have to go to trial once for the
charge. It's right here. The idea let
‘em be charged in Philadelphia or
Florida, that's gone. The double
jeopardy clause applies. It's in all
the plea agreements. Those other people
can't be charged for the same offense in
Missouri that this same conspiracy is
charged. It's unconstitutional and they
know it.
* * *
[6101] How often it is that you
have, within your own power, within your
own back yard, the power to take care of
the problem? Ladies and gentlemen, the
government has given you that power.
You are on this jury. You have that
power. It's -up to you to take care of
the problem, which is in your own back
yard. Thank you.
-19-
Jury Charge
j ’
United States District Court,
Southern District of Illinois,
Case No. 87-40045
THE COURT: Members of the jury, I'm
going to now give you the instructions,
Since the evidence has been completed
and now arguments have been finished.
And in these instructions is the law
that's applicable to the case. One of
the attorneys showed you those earlier
and they are quite lengthy. If you will
be patient, we will get through with
them in a few minutes but they do
contain the law as the Court has
determined and it's applicable to the
facts.
These instructions, members of the
jury, have been prepared with a great
deal of care in conjunction with the
attorneys for all of the parties and
they have cooperated fully with me in
that regard and so they'll go with you
ladies and gentlemen to the jury room.
If you have any problem with any one
that I have given you here orally, why
feel free to refer to then. They will
be with you in the jury room during your
deliberations and it is your obligation,
as a matter of fact, it is your duty to
follow all of the instructions that I
[6102] give you. You must not question
any rule of law that is stated by me to
you in these instructions, regardless of
any opinion that you may have as to what
you think the law ought to be. you must
-20-
base your verdict on the law as I give
it you in these instructions.
It is your duty, members of the
jury, to determine the facts from the
evidence that's been presented in this
case. You are to apply the law that I
give you in these instructions, to the
facts, and in this way decide the case.
Now neither by these instructions,
members of the jury, nor by any ruling
or remark which I may have made during
the course of the trial do I mean to
indicate any opinion as to the facts or
as to what I think your verdict should
be. You again are the sole judges of
the facts in the case.
Now in addition to you members of
the jury being the sole judges of the
facts, I told you at the beginning among
your many other duties and
responsibilities, you would be the sole
judges of the credibility of the
witnesses. And of the the weight to be
given to the testimony of each of then.
In considering the testimony of any
witness, you make take into account his
or her intelligence, his or her ability
and opportunity to observe whatever they
testify about, that person's age, his or
her memory, his manner or her manner
while testifying on the witness stand
here, and any interest, bias or
prejudice that person may have in the
case, and then [6103] of course the
reasonableness of that person's
testimony considered in light of all of
the other evidence in the case.
-21-
'
}
a
I might say at the outset, members
of the jury, that a defendant in a
criminal case has an absolute right not
to testify. The fact that a defendant
did not testify should not be considered
by you in any way in arriving at your
verdict here. The reliability of eye
witness identification has been raised
as an issue in this case and deserves
your attention. Identification
testimony is an expression of belief or
impression by the witness. Its value
depends upon the opportunity the witness
had to observe the offender at the time
of the offense, and later to make a
reliable identification and upon the
influence and circumstances under which
the witness made the identification.
You must consider the credibility
of each identification witness in the
Same way as any other witness. Consider
whether he is truthful, consider whether
he had the capacity and opportunity to
make a reliable observation on the
matter covered in his testimony.
The government has the burden of
proving beyond a reasonable doubt that
the defendant was the -_person who
committed the crime charged. Evidence
that a witness has been convicted of a
crime, members of the jury, is to be
considered by you only insofar as it may
affect the witness's credibility.
[6104] The testimony of some
witnesses must be considered by you with
more caution than the testimony of other
witnesses. In this case, the government
-22-
a
EE
called as witnesses persons with whom
the government has entered into plea
agreements providing for the dismissal
of some charges and/or a recommendation
for a lesser sentence than the witness
would otherwise be exposed to for the
offense to which he pled guilty.
The government has also called as
witnesses persons who have been granted
immunity. A witness who has_ been
granted immunity or a witness who hopes
to gain more favorable treatment in his
own case may have a reason to make a
false statement because he wants to
strike a good bargain with the
government. So while a witness of that
kind may be entirely truthful when
testifying, you should consider these
witnesses' testimony with more caution
than the testimony of other witnesses.
Also, certain witnesses have
admitted lying under oath. You may give
the witness's testimony such weight as
you feel it deserves, keeping in mind
that it should be considered with
caution and great care.
Certain witnesses have pleaded
guilty or stated that they were involved
in the commission of crimes arising out
of the same occurrence for which the
defendants are now on trial. You may
give their testimony such weight as you
feel [6105] it deserves, keeping in mind
that it must be considered with caution
and great care. Moreover, their pleas
or their guilty pleas are not to be
-23-
considered as evidence against’ the
defendants.
You have heard testimony from
witnesses who stated that they were
involved in the commission of the
alleged crime charged against the
defendants. You may give their
testimony such weight as you feel it
deserves, keeping in mind that it must
be considered with caution and great
care.
The weight to be given to any
particular evidence is not necessarily
determined by the number of witnesses
testifying on behalf of each side. You
are to consider all of the-evidence in
the case in determining the credibility
of the witnesses. You may find that the
testimony of a smaller number of
witnesses for one side is more
creditable than the testimony of a
greater number of witnesses for the
other side.
And I might add, members of the
jury, it is proper for an attorney to
interview any witness in the preparation
for trial.
I told you at the beginning of the
case there were two types of evidence.
If you recall, I told you there was
direct and circumstantial evidence and
gave you an example at that time and I
will attempt to maybe more formally
define that for you now.
-24-
Piiartnes tere ey aie td as tn ie
[6104] Direct evidence is the
testimony of a person who claims to have
personal knowledge of the commission of
the crime which has been charged such as
an eye witness. Circumstantial
evidence, on the other hand, is the
proof of a chain of facts or
circumstances which tend to show whether
a defendant is guilty or not guilty.
The law makes no distinction between the
weight to be given either to direct or
circumstantial evidence. Therefore all
of the evidence in the case, including
the circumstantial evidence, should be
considered by you in arriving at your
verdict here.
Now the evidence in the case
consists of the following. It consists
of the sworn testimony of the witnesses
that have testified here from the
witness stand, the exhibits that have
been offered, and received in evidence
here, and those matters that have been
stipulated, admitted or judicially
noticed by the Court. A stipulation is
an agreed statement of facts between the
parties and you should regard agreed
statements as true.
I have taken, during the course of
the trial, on two or three occasions,
judicial notice of certain facts which I
regard as matters of common knowledge.
You may, but you are not required to
accept those facts as proved. You are
to consider only the evidence received
in this case. You should consider this
evidence in the light of your own
observations and experiences in life.
-25-
You may draw such reasonable [6107]
inferences as you believe to be
justified from proved facts.
You are to disregard any evidence,
members of the jury, to which I
Sustained an objection or which I
ordered stricken. Anything you may have
seen or heard about this case outside of
the courtroom is not evidence and must
be entirely disregarded. you should not
be influenced by Sympathy, prejudice,
fear or public opinion.
~ Now opening statements are made at
the beginning of the case, by and large
with the exception of one defendant, and
by counsel for the parties, and opening
statements are for. the purpose of
acquainting you in advance with the
facts that counsel expect the evidence
to show when it is presented.
Closing arguments of counsel are
then made at the end of the case and
that's for the purpose of discussing the
evidence that's been presented to you.
Now opening statements and Closing
arguments and other statements of
counsel made during the course of the
trial should be disregarded to the
extent that they are not Supported by
the evidence. During the course of
trial, it often becomes the duty of
counsel to make objections and for me to
rule upon them in accordance with the
law as I understand it. The fact that
counsel made objections should not
-26-
influence you ladies and gentlemen in
any way.
[6107] You should decide this case
solely on the evidence presented here in
this courtroon. You must completely
disregard any press, television or radio
reports which you may have read, seen or
heard. Such reports are not evidence.
Therefore you must not be influenced in
any manner whatever by such publicity.
During the course of this trial,
you have heard that there was another
trial before the Court involving some of
the witnesses in this trial, or some of
the witnesses that are in this trial and
that is true. The evidence--the
defendants here are entitled, however,
to have you decide this case entirely on >
the evidence that has come before you in
this trial. You should not consider the
fact or result of a previous trial in
any way when you decide whether the
government has proved beyond a
reasonable doubt that any of the
defendants in this case committed the
crime or crimes charged.
Now during the course of these
instructions, members of the jury, I
will use the word knowingly and when I
do, it means that the defendant realized
what he was doing and was aware of the
nature of his conduct and did not act
through ignorance, mistake or accident.
Knowledge may be proved by the
defendant's conduct and by all of the
facts and circumstances surrounding the
case.
=27<
And when I use the word
intentionally, it means that a person
knew what he was doing, and that the act
he committed was done on purpose. Now
the indictment, members of the jury,
[6109] in this case, as I have told you
again at the beginning of the case, and
I remind you again, is the formal method
of accusing a defendant of a crime and
placing him on trial. It is not to be
considered by you as evidence against a
defendant, and does not create any
inference of guilt.
The indictment here, members of the
jury, charges that the offense or
offenses was committed on or about a
certain date. Although the evidence
need not establish with certainty the
exact date of the alleged offense or
offenses, it must establish that the
offense or offenses was committed on a
date reasonably near the date charged.
Now members of the jury, the
defendant Michael John Canino, in count
1, is charged with the crime of engaging
in Continuing Criminal Enterprise. Then
the defendants in count 2, Michael John
Canino, David L. Malkin, Joseph Watts,
James Gilbert Marcum, and John Flynn,
are each charged with the crime of
conspiracy to distribute more than a
thousand pounds of marijuana, a schedule
1 controlled substance. Each of these
defendants has denied that he is guilty
of these charges.
Now I think I should make it clear
to you here at this juncture in the
-28-
charge conference that you have heard
evidence of acts of the defendants other
than those that are charged in the
indictment. I have instructed you
during the course of the trial from time
to time that certain evidence [6109] has
been admitted as to one defendant, and
not others, with a limiting instruction
from me about that. You should consider
that evidence only in regard to the
defendant as to whom it was admitted,
and for the limited purpose for which it
was offered.
* * *
[6118] Venue for distribution of
marijuana or conspiracy to distribute
marijuana or engaging in a Continuing
Criminal Enterprise is proper in any
district into which marijuana was
ultimately transported, or in any
district in which an overt act was
committed. With respect to the
Continuing Criminal Enterprise charged
in count 1, it is required that the
United States establish that venue
existed in the Southern District of
Illinois as to one of the three
violations in the series required to be
proved. Venue, unlike the other issues
about which you have been been
instructed, need not be proved beyond a
reasonable doubt. But rather need only
be established by a preponderance of the
evidence and may be _ established by
circumstantial evidence.
(6119) Title 21, United States
Code, Section 841(a) reads again insofar
-29-
as it's applicable, it shall be unlawful
for any person knowingly and
intentionally; or intentionally;
knowingly or intentionally to distribute
a controlled substance. Then title 21
of the United States Code, Section 846
reads in pertinent part as follows,
members of the jury. Any person who
conspires to commit any offense defined
in this sub-chapter shall be guilty of
an offense against the United States.
And you are further instructed,
members of the jury, that as a matter of
law that the distribution of marijuana
is an offense that is defined in this
sub-chapter of that law. Now to sustain
the charge of conspiracy to distribute
marijuana in a quantity in excess of one
thousand pounds as charged in count 2,
the government must prove the following
propositions.
First, that the defendant conspired
to distribute marijuana, a schedule 1
controlled substance during the time
period that's alleged.
And second, that the defendant
conspired to do so knowingly and
intentionally and third, that the amount
of marijuana involved was more than a
thousand pounds. If you tind, members
of the jury, from your consideration of
all of the evidence in the case that
each of these propositions has been
proved beyond a reasonable doubt against
a particular [6120] defendant, then you
should find that defendant guilty as
charged in count 2.-<-
-30-
If on the other hand you find from
your consideration of all of the
evidence that any of these propositions
has not been proved beyond a reasonable
doubt against a particular defendant,
then you should find that defendant not
guilty as charged in count 2.
In order to establish the offense
of conspiracy to distribute marijuana in
excess of a thousand pounds as charged
in count 2, the government must prove
these elements beyond a _ reasonable
doubt. One, that the alleged conspiracy
existed, and two, that the defendant
knowingly and intentionally became a
member of the conspiracy.
A conspiracy, members of the jury,
is a combination of two or more person
to accomplish an unlawful purpose. A
conspiracy may be established even if
its purpose was not accomplished. In
doing, or in determining whether the
alleged conspiracy existed, you may
consider the actions and statements of
all of the alleged participants. The
agreement may be inferred from all of
the circumstances and the conduct of all
the alleged participants.
In determining whether the
defendant became a member of the
conspiracy, you may consider only the
acts and statements of that pa:ticular
defendant. To be a member of the
conspiracy, the defendant need not join
at the beginning, [6121] or know all of
the other members, or the means by which
the purpose was to be accomplished.
-3l1-
The government must prove beyond a
reasonable doubt from the defendant's
own acts and statements that he was
aware of the common purpose and was a
willing participant. An overt act is
any act knowingly committed by one of
the conspirators in an effort to effect
or accomplish some object or purpose of
the conspiracy. The overt act need not
be criminal in nature, if considered
separately and apart from the
conspiracy.
It may be as innocent as the act of
a man walking across the street, or
driving an automobile, or using a
telephone. It must however be an act
which follows and tends towards
accomplishment of the plan or scheme and
must be knowingly done in furtherance of
some object or purpose of the conspiracy
charged in the indictment.
Distribution is the transfer of
possession from one person to another.
Possession may be actual or
constructive. Constructive possession
is the ability to control marijuana.
You may judge the defendants only,
members of the jury, on the charges that
are alleged here in this indictment.
You may not convict them on any other
alleged conspiracy in the event you
should conclude that they have engaged
in some other conspiracy. Therefore, if
you are not convinced beyond a
reasonable doubt that a particular
defendant knowingly and intentionally
joined the conspiracy [6122] alleged in
-32-
the indictment, you must find that
defendant not guilty. Even if you find
that a particular defendant knowingly
and intentionally joined a conspiracy
other than that alleged in the
indictment, you should nevertheless find
that defendant guilty of the charge
alleged in the indictment, if you are
convinced beyond a reasonable doubt that
the defendant knowingly and
intentionally joined the single overall
conspiracy that is alleged in the
indictment, and the elements of which
are otherwise contained in these
instructions.
Presence at the scene of the crime
or knowledge that a crime is being
committed are not sufficient to
establish the defendant's guilt. Each
count of this indictment, members of the
jury, charges each defendant named in
that count with having committed a
separate offense. You must give
separate consideration both to. each
count and to each defendant. You must
consider each count and the evidence
relating to it separate and apart from
every other count.
You should return a separate
verdict as to each defendant and as to
each count. Your verdict of guilty or
not guilty of an offense charged in one
count should not control your decision
as to that defendant under any other
_count.
Although the defendants are being
tried here jointly, members of the jury,
-33-
you must give separate consideration to
each defendant. In doing so, you must
(6123] analyze what the evidence in the
case shows with respect to each
defendant, leaving out of consideration
any evidence admitted solely against
some other defendant or defendants.
Each defendant is entitled to have
his case decided on the evidence and the
law applicable to him. The defendant
Canino is charged in two counts and he
deserves separate consideration as to
each count.
A defendant in a criminal case,
members of the jury, is presumed
innocent of the charges against hin.
This presumption remains with the
defendant throughout every stage of the
trial and during your deliberations on
your verdict and is not overcome unless
from all of the evidence in the case,
you are convinced beyond a _ reasonable
doubt that a defendant is guilty.
The government has the burden of
proving the guilt of a defendant beyond
a reasonable doubt. And this burden
remains on the government throughout the
case. A defendant is not required to
prove his innocence, or for that matter
to produce any evidence.
Now the verdict in this case,
members of the jury, must represent the
considered judgment of each juror. your
verdict, whether it be guilty or not
guilty, in other words, must’ be
unanimous. You should make every
-34-
ee
reasonable effort to reach a verdict.
In doing so, you should consult with one
another, express your own views and
listen to the opinions [6124] of your
fellow jurors. Discuss your differences
with an open mind. Do not hesitate to
re-examine your own views and change
your opinion if you come to believe it
is wrong.
You should not surrender your
honest beliefs about the weight or
effect of evidence solely because of the
opinions of your fellow jurors or for
the purpose of returning a unanimous
verdict. The 12 of you should give fair
and equal consideration to all the
evidence and deliberate with the goal of
reaching an agreement which is
consistent with the individual judgment
of each juror.
You are impartial judges of the
facts. Your sole interest is to
determine whether the government has
proved its case beyond a_ reasonable
doubt.
Now for those of you jurors who
have taken notes, I want to remind you
that your notes are not evidence and
should not take precedence over your
independent recollection of the
evidence. If you did not take notes,
you should rely on your own independent
recollection of the proceedings and you
should not be influenced by the notes of
other jurors.
-35-
I emphasize that notes are not
entitled to any greater weight than the
recollection or impression of each juror
as to what the testimony may have been
in the case.
I do not anticipate, members of the
jury, that you will need to communicate
with me during the course of your
deliberations. If you do, however, the
only proper way is in [6125] writing,
signed by the foreperson, and/or if he
or she, whoever that may be, is
unwilling to do so, then by some other
juror. Then give it to the Court
security person who will serve as
bailiff, and that note will then be
given to me in due course.
I want you to bear in mind too,
members of the jury, that you are never
to reveal to any person, and not even to
the Court, how the jury stands
numerically or otherwise on the question
of the guilt or innocence of the accused
until after you have reached a unanimous
verdict.
Now upon retiring, members of the
jury, to the jury room, your first order
of business will be to select one of
your number as foreperson of the jury.
That foreperson will then preside over
your deliberations in the jury room and
will be your spokesman here in open
Court if that's necessary.
Forms of verdict have been prepared
for your convenience in returning. And
they are as follows. We the jury find
-36-
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2
the defendant Michael J. Canino blank
and you will fill in guilty or not
guilty as you find the defendant of the
offense as charged in count 1 of the
indictment.
We the jury find the defendant
Michael J. Canino blank. You will fill
in guilty or not guilty as you find the
defendant of the offense as charged in
count 2 of the indictment. Each of
these verdict forms’ should then be
Signed on the top line by the foreperson
of the jury and then by the [6126]
remaining 11 jurors.
We the jury find the defendant
David L. Malkin blank and you will fill
in guilty or not guilty as you find him
of the offense as charged in count 2 of
the indictment. That likewise should be
signed on the top line by the foreperson
and then by the remaining 11 jurors.
We the jury find the defendant
Joseph Watts blank. You will fill in
guilty or not guilty as you find the
defendant of the offense as charged in
count 2 of the indictment.
That form should be signed, as I
have already told you, as the others.
We the jury find the defendant James G.
Marcum blank, guilty or not guilty, as
you find that defendant of the offense
as charged in count 2 of the indictment
and that verdict form should be signed
in the manner as I have told you with
regard to the others.
=37-
These verdict forms, members of the
jury, and the instructions that I have
just given to you, along with the
exhibits will go with you ladies and
gentlemen to the jury room. Before we
proceed further, I will ask counsel to
step to the side bar and Mr. Witcher, do
you want to come forward [6127] and be
sworn. ~
Post Jury Charge Conference
’
United States District Court,
Southern District of Illinois,
Case No. 87-40045
THE COURT: I will give you an
opportunity. That is why I have got you
here. You have heard the giving of the
charge to the jury. Are there
corrections, supplements, additions, or
additional objections thereto?
MR. HIRSCH: Sir, with respect to
supplemental matters, it's the position
of the defendant Malkin that Mr. Carr
unfairly and prejudicially injected an
issue into the case in the nature of
double jeopardy. He made arguments with
respect to double jeopardy. His
argument in part was keyed to double
jeopardy and I think that this jury
should be instructed and admonished that
double jeopardy, or formal, jeopardy or
any theories related thereto are not
involved in this case.
-38-
celina tal
}
:
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THE COURT: It came up in the
argument over the language in the plea
agreements.
MR. HIRSCH: I understand that. I
understand that.
THE COURT: I don't know. Do you
have any comment about it?
MR. CARR: I think it's fair
response when an individual, the
individuals that I named in the argument
said send it to Pennsylvania or send it
to Florida. I cite the Seventh Circuit
case of ino,
where in essence the same kind of
arguments were being made and the
Appellate Court said that there was
nothing wrong with telling the jury the
truth, especially in light of the fact
that the plea agreements themselves
contained the clause. One of the
witnesses even talked about the double
jeopardy clause and that he didn't feel
like that he was eligible to be
prosecuted.
I think it's a fair comment on the
evidence, in light of the arguments by
the, by Mr. Hirschhorn, Hirsch, and
Sheppard.
THE COURT: I will not give any
additional, supplemental instruction at
this time. Do you have anything?
MR. HIRSCHHORN: Your Honor, I'm
prepared to make the objections I think
on behalf of everybody. I have reviewed
-39-
the instructions. I read along with the
Court.
THE COURT: You mean these are in
addition to the ones or is it to just
renew the ones we have talked about?
MR. HIRSCHHORN: I'll do it quickly
and efficiently but I read _ along
carefully with you. I believe you read
the instructions as they were given to
us so we don't, I didn't catch anything
to object. However, we renew all the
[6129] objections that we made and all
the arguments previously made and
respectfully request permission from the
Court to adopt our extensive arguments
during the two days off and on of jury
charge conference.
THE COURT: You have that
permission. That may be part of the
record.
a * *
In addition we object to and renew
our request that the Court's refusal, we
object to the Court's refusal to grant
the defendant's requested charges
numbered 19, 20, and 16 which dealt with
buyer/seller relationship. 14, 17, 21,
24, 26, 28, 29 and 30.
= * *
[6164] MR. SHEPPARD: May it
please the Court, in light of [6165] the
Court's taking a short recess, at the
conclusion of the Court's instructions,
-40-
after closing arguments, we had orally
requested an instruction with regard to
double jeopardy, which the Court
declined to give. I have utilized my
time over the the weekend to research
that point and I have a proposed
requested supplemental jury instruction
with regard to what I regard as improper
argument by the government, and a case
that's fairly close and I wanted to
furnish the Court with the cite to that
case so perhaps that matter could be
expedited. It's again a Ninth Circuit
case. I don't apologize. It's the only
case I'm able to find on the point but
it's Unite tes v th, 466 F.2d
2212.
And I will tender to the clerk copy
of the proposed requested supplemental
instruction with regard to the double
jeopardy matter and perhaps that can be
considered; give the Court an
opportunity to look that over.
THE COURT: Sure I'll be glad to do
that.
MR. SHEPPARD: Thank you, Your
Honor. We will argue it further,
obviously, hopefully.
~ * *
[6167] THE COURT: With regard to
your request for supplemental
instruction, the Court has looked at the
Roth case and had Patti review Mr.
Carr's comments in the closing portion
of the argument and it appears to me
-41-
that his comments’ related to the
witnesses, Podesta in particular.
I find that if anything, this was
an invited response situation and really
peripheral to the issues with regard to
possible double jeopardy of the
defendants. So I'm not going to give
the tendered instruction and it can be
left here for the record, Mr. Sheppard.
{6168} MR. SHEPPARD: We ask that
it be marked as defendant's suggested
supplemental jury instruction No.1. I
didn't put a number.
THE CLERK: We called it
defendant's instruction 33, Your Honor.
THE COURT: Well just so that the
record reflects that it is tendered on
the second day that the jury has been
deliberating.
MR. SHEPPARD: The record should
also reflect that we requested it and
the Court out of hand denied it five
minutes after they were initially
instructed.
THE COURT: Well that's true. You
brought it up and the Court reviewed
your comments in the transcript.
Actually they were made by Mr. Hirsch.
He brought the double jeopardy issue up
and then you agreed with him and then
now you have tendered this and there is
no question, the record speaks, that it
was brought up at that time, but there
was no written instruction tendered to
-42-
; me at that time. That's all I want to
Say about it.
~43-
APPENDIX B
In the
United States Court of Appeals
Hor the Seventh Circuit
Nos. 89-1719, 89-1721,
89-1740 and 89-1746
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
Vv.
MICHAEL JOHN CANINO,
JAMES GILBERT MARCUM,
JOHN G. FLYNN, and
DAVID LEONARD MALKIN,
Defendants-Appellants.
Appeals from the United States District Court for the
Southern District of Illinois, Benton Division.
No. 87 CR 40045—James L. Foreman, Chief Judge.
ARGUED APRIL 4, 1991—DECIDED NOVEMBER 27, 1991
Before EASTERBROOK and MANION, Circuit Judges, and
ESSCHBACH, Senior Circuit Judge.*
MANION, Circuit Judge. On September 29, 1987, a fed-
eral grand jury handed down a two-count indictment filed
* This opinion has been circulated among the judges of this court
in regular active service pursuant to Circuit Rule 40(f). A majority
did not favor a rehearing en banc on the question of a possible
conflict with the Third Circuit’s decision in United States v.
Echeverri, 854 F.2d 638 (3d Cir. 1988).
2 Nos. 89-1719, 89-1721, 89-1740 & 89-1746
in the Southern District of Illinois. Count 1 charged Mi-
chael John Canino with having knowingly and willingly
engaged in a continuing criminal conspiracy to distribute
and sell marijuana in violation of 21 U.S.C. § 848. To sub-
stantiate the “continuousness” of the criminal enterprise,
the indictment listed five (5) specific occasions in which
Canino spearheaded a group of people to possess and dis-
tribute marijuana. Count 2 of the indictment charged Canino,
along with James G. Marcum, John G. Flynn, and David
L. Malkin, with conspiracy to distribute over 1,000 pounds
of marijuana in violation of 21 U.S.C. §§ 841(aX(1) and 846.
Following a jury trial in which the defendants were
tried together, defendant Michael Canino was found guil-
ty of violating the Continuing Criminal Enterprise statute
(CCE), 21 U.S.C. § 848.1 Canino, along with defendants
James G. Marcum, John G. Flynn, and David Malkin,
were each convicted for their part in a conspiracy to dis-
tribute more than 1,000 pounds of marijuana. The defen-
dants appeal from the verdict collectively on some issues
and individually on others. After reviewing the record,
the briefs and the law controlling this case, we affirm the
jury verdict in all respects.
I. Background
This case comes to us as one of a series of prosecutions
in the Southern District of Illinois involving a nationwide
marijuana importation/distribution network. The criminal
defendants in this case are accused for their part in the
notorious ‘‘Randy Lanier - Benjamin Kramer” drug ring
that was responsible for importing over 600,000 pounds
1 The Continuing Criminal ye! pope statute applies special severe
penalties to one who “‘is a part of a continuing series of violations”
of federal drug laws and who “acts in concert with five or more
other persons with respect to whom such person occupies a posi-
tion of organizer, a supervisory position, or any other position of
management” throughout the continuing series of violations. In
other words, the statute applies to drug “kingpins.” 21 U.S.C.
§ 848(cX2XA).
Feo AE NAN we he aerate hie ots te
a Po SA A ng ae Ae MR RO OE CS at Rt Bie tae ih ioe Boe Ng ae Me
Nos. 89-1719, 89-1721, 89-1740 & 89-1746 3
of marijuana into the United States over a ten-year pe-
riod. The defendants Canino and Malkin were associated
with what was called the “Pennsylvania Set-up.” In very
broad terms, Canino and Malkin had a system of procur-
ing marijuana directly from Lanier and his importing op-
eration and storing it in a “stash house” outside of Allen-
town, Pennsylvania, for ultimate distribution around the
United States. Some of this marijuana was purchased by
Canino to supply his drug-selling enterprise, and some was
simply stored for Lanier’s customers until they picked it
up. Canino earned valuable commissions per pound on
marijuana stored in his stash house.
The government produced evidence demonstrating that
defendant Marcum was a substantial customer of illegal
Lanier imports. Evidence at trial showed that Marcum
purchased millions of dollars worth of marijuana from each
shipment listed in the indictment for later sale and dis-
tribution. Marcum would regularly accept and transport
his marijuana around the United States in tractor-trailers
in order to supply his purchasers who themselves were
large-scale pushers.
Defendant Flynn was an offloader for Lanier’s group.
Flynn was involved in each of the five specified acts listed
in the indictment, helping get marijuana off the ships and
loading it into the vans and tractor-trailers which were
used in transporting the marijuana to its ultimate destina-
tion. At Lanier’s behest, Flynn also went to Colombia,
South America, to help arrange the purchasing, packing,
and exporting of marijuana for three of the five Lanier-
organized shipments which Canino is accused of having
helped distribute.
As noted earlier, the indictment handed down by the
grand jury listed five specific occasions on which an orga-
nization headed by Canino accepted drug shipments from
Lanier-organized imports for distribution, sale and storage.
Each itemized occasion in the indictment represented a
partial distribution of an enormous shipment of marijuana
from Randy Lanier to the group of distributors spear-
4 Nos. 89-1719, 89-1721, 89-1740 & 89-1746
headed hy Canino. The first offense listed in the indict-
ment involved Canino’s involvement in the importation of
a 36,000-pound shipment of marijuana in November or
December 1982. By late 1982, Randy Lanier and Benjamin
Kramer, who had been running a successful marijuana im-
porting business since the late 1970’s, discovered that
their imports had outgrown the storage capacity of their
“stash house” in southern Florida. At that time they were
expecting the arrival of their largest single shipment yet,
a tugboat carrying 36,000 pounds of marijuana, and needed
a place to store the shipment. Canino, until that time, had
been a mere purchaser from the Lanier importing group.
However, on this occasion Canino volunteered to make
his stash house available for the marijuana’s storage, and
also volunteered to send workers and trucks to help un-
load the marijuana from the tugboat once it reached its
port-of-call, Bridgeport, Connecticut, and safely transport
the drugs to Allentown, Pennsylvania. In addition to his
warehousing functions, Canino continued to be a signifi-
cant customer of the Lanier group. :
Ultimately, the marijuana was trucked throughout the
United States from Canino’s stash house for distribution
and sale. A portion of this 1982 load (as well as future
loads warehoused by Canino) was sold to Jerry Juenger
of Millstadt, Illinois. This connection is important because
it is the conspiracy’s connection with Millstadt, Illinois,
which is the basis of the jurisdiction and venue of the
United States District Court for the Southern District of
Illinois. Juenger, who was questioned by and cooperated
with authorities investigating the drug ring with which
he was connected, provided helpful evidence for this case
and in a number of other successful prosecutions pursued
in the Southern District of Illinois.
The second drug transaction chronicled in the indictment
involved a 1983 importation of 126,000 pounds of mari-
juana transported to New York City. The marijuana was
stored in hollowed-out compartments in the sides of a
specially designed barge. Thirty-six thousand pounds of
this load went to Canino for storage and distribution.
Nos. 89-1719, 89-1721, 89-1740 & 89-1746 5)
Much of this share was sold to defendant Malkin for fur-
ther sale and distribution across the country.
In 1984 Canino was again involved in the distribution of
another import of marijuana. This time the Lanier group
successfully imported 150,000 pounds of marijuana in their
special barge to San Francisco, California. Canino was con-
tacted by the Lanier group and asked to send a tractor-
trailer truck to accept his share of the contraband. Canino
sent his brother John Canino with a truck to San Fran-
cisco to pick up roughly 27,000 pounds of marijuana. Half
of the 27,000 pounds was sold to Malkin for distribution
and sale to his particular customers.
Canino was getting tired of the relative infrequency of
drug shipments organized by the Lanier group, which
averaged out to once a year. Although not listed in the
indictment of the present case, the government produced
evidence at trial that Canino organized his own indepen-
dent shipment in 1984 of 20,000 pounds of marijuana from
Jamaica. This shipment, known at trial as the “Jamaica
Load,” was interdicted by law enforcement officials. Canino
was indicted and ultimately convicted in 1986 for his ef-
forts to import and distribute this shipment of marijuana.
ter Canino went to jail for this offense, defendant Mal-
kin became the front man for Canino’s organization, main-
taining contact with representatives of the Lanier group
on Canino’s behalf in order to continue purchasing mari-
juana for Canino’s drug enterprise and to make sure Ca-
nino could still continue receiving commissions for stor-
ing Lanier’s marijuana.
While awaiting trial for the Jamaica Load offense, the
indictment states that in 1985 Canino arranged to receive
a portion of yet another bargeload of marijuana imported
by Lanier and his group. This time, the barge was ex-
pected to arrive in New Orleans, Louisiana. Of the 165,000
pounds of the entire New Orleans shipment, Canino’s group
picked up 18,000 pounds. Canino had his cohort Malkin
travel to Kansas City, Missouri, where most of the New
Orleans shipment was being stored, to arrange having the
li
6 Nos. 89-1719, 89-1721, 89-1740 & 89-1746
18,000 pounds brought back to the Allentown, Pennsy]-
vania stash house by tractor-trailer truck.
The last shipment constituting the final itemized predi-
eate act in the indictment involves a 1986 bargeload of
marijuana once again shipped to San Francisco. As usual,
regular Lanier customers were summoned to send repre-
sentatives with tractor-trailers to San Francisco to receive
their split from the imported shipment. The shipment
which Malkin obtained on behalf of Canino’s group was
interdicted by the Federal Bureau of Investigation en
route to Pennsylvania.
Confiscated record books and confessions acquired by
investigating officials introduced at trial, as well as wit-
nesses’ testimony, revealed that defendant Marcum was
a regular and substantial customer from Lanier and made
a healthy profit selling his share of the Lanier imports.
Flynn was shown at trial to be a steadfast worker for
Lanier, unloading shipments from boats and helping to
stock the trucks of Lanier’s regular crew of customers.
Evidence showed that Flynn went to Colombia on several
occasions to arrange the export of marijuana shipments
for Lanier.
The trial lasted about two and one-half months and ended
with a jury verdict finding Canino guilty of operating a
Continuing Criminal Enterprise in the purchasing, storing
and distribution of marijuana. In addition, Canino, Malkin,
Marcum and Flynn were convicted on the conspiracy count
to distribute over 1,000 pounds of marijuana. Judgment
was entered and the individual defendants were sentenced
to prison for the following terms: Canino, 26 years per
count to run concurrently; Malkin, 22 years; Marcum, 22
years; and Flynn, 25 years.
The defendants on ap claim some common grounds
of error at trial. In addition, defendants Canino, Marcum
and Flynn each filed with this court particularized grounds
for appeal. We will first consider the common appeal
unds, and then examine the individual complaints of
anino, Flynn and Marcum respectively.
Nos. 89-1719, 89-1721, 89-1740 & 89-1746 7
II. Common Grounds
The defendants collectively claim that certain egregious
events occurred at trial, each one amounting to reversible
error. They claim that: (a) the trial contained an instance
of gross prosecutorial misconduct; (b) the court should
have declared a mistrial for all the defendants when a
defendant in this action had his cause severed and his at-
torney disqualified after the trial had begun; (c) the prose-
cutor deliberately made erroneous, misleading, and prej-
udicial remarks to the jury in his closing argument; (d)
the court failed to give the defendants’ requested jury
instruction relating to their “theory of defense’’; (e) the
court failed to give a jury instruction to the effect that
evidence of a “buyer-seller” relationship in drugs is in-
sufficient to prove the existence of a conspiracy; (f) the
government did not demonstrate by a preponderance of
the evidence that the Southern District of Illinois was the
proper venue; (g) the defendants were denied examination
of relevant presentence reports for exculpating informa-
tion; and, (h) the prosecutor committed misconduct in the
presentation of his case to the grand jury. Each argument
will be explored seriatim.
A. Prosecutorial Misconduct
During the trial a confrontation occurred between Assis-
tant U.S. Attorney Michael Carr, who was prosecuting the
case on behalf of the government, and Canino’s defense
attorney Joel Hirschhorn. Hirschhorn was questioning a
key government witness about some inconsistent testi-
mony the witness delivered at an earlier criminal trial not
involving any of the defendants in the present litigation.
Hirschhorn was reading to the witness from the previous
trial’s transcript when Carr objected that Hirschhorn was
misstating a distorting what appeared in the transcript.
Hirschhorn said he was reading “word for word.” Carr
kept asserting his charge against Hirschhorn. Finally the
judge asked Hirschhorn:
8 Nos. 89-1719, 89-1721, 89-1740 & 89-1746
The Court: . . . Were you paraphrasing?
Mr. Hirschhorn: No, I’m reading word for word.
The Court: He’s saying you are not.
Mr. Hirschhorn: He’s lying. I’m reading word for
word.
The court permitted Hirschhorn’s question as asked, over-
ruling Carr’s objection.
During a recess and out of the presence of the jury,
Carr, outraged at being called a liar in front of the jury,
approached Hirschhorn and in a hostile manner called
Hirschhorn a “sleaze” and indicated that Hirschhorn was
in “serious trouble” and that he “would get [him].” Carr
reportedly also said that if Hirschhorn called him a liar
before the jury again he would “break [his] nose.” The
discourse did not end here, however. Carr reportedly told
Hirschhorn: “You are a pussy,” “Don’t talk to me,” and
“You have no balls.” The defense claims that these highly
provocative comments were intimidating to a degree that
compromised defense counsels’ ability to vigorously advo-
cate their clients’ cause, thus impinging on defendants’
right to have a fair trial.
Allegations of prosecutorial misconduct are generally
rooted in the due process clause. United States v. Weaver,
882 F.2d 1128, 1140-41 (7th Cir. 1989). The basis for such
a claim is the fairness of the trial, not the culpability of
the prosecutor. Smith v. Phillips, 455 U.S. 209, 219 (1982).
Therefore, the prosecutor’s conduct is viewed not in iso-
lation but in the context of the whole trial in order to
determine if it was so inflammatory and prejudicial that
it deprived a defendant of a fair trial. United States v.
, 864 F.2d 55, 59 (7th Cir. 1988).
We will give substantial weight to a district court’s de-
termination that a prosecutor’s misconduct did not affect
the trial. United States v. Mazzone, 782 F.2d 757, 768 (7th
Cir.), cert. denied, 479 U.S. 838 (1986). Although certainly
inappropriate, Attorney Carr’s comments could not have
Nos. 89-1719, 89-1721, 89-1740 & 89-1746 9
affected the jury’s ability to judge the evidence or develop
a prejudicial bias since the comments were not made in
the jury’s presence. Inappropriate prosecutorial comments,
standing alone without a showing of adverse prejudicial
impact on the jury, do not justify a reviewing court re-
versing a criminal conviction obtained in ar. otherwise fair
trial. United States v. Young, 470 U.S. 1, 13-14 (1985).
The district court judge was alerted to what transpired,
and confidently permitted trial to proceed.
Additionally, the trial record does not reflect any un-
desirable “chilling” of the defense counsels’ advocacy as
a result of Carr’s remarks. Advocacy by all four defense
counsel at trial seemed suitably intense and vigorous. In-
deed, lawyers for the defense were bold enough to file
a Motion for Disqualification of Attorney Carr (which the
court denied). Carr apologized both privately and publicly
for his improper comments and his regrets were accepted
by Hirschhorn. In fact, Hirschhorn (despite the Motion
for Disqualification) indicated to the trial court that there
was no problem in his ability to litigate the case. During
oral argument on appeal, Hirschhorn mentioned that he
had argued many criminal cases in several federal circuits.
It is highly unlikely that this brief verbal encounter had
any effect on this very experienced attorney’s ability to
defend his client. Unfortunately this is not the first trial
in which Hirschhorn and Carr faced off with each other (in
the same court) and where similar accusations of prosecu-
torial misconduct were made. See United States v. Mealy,
851 F.2d 890 (7th Cir. 1988). In Mealy, Carr and Hirsch-
horn were cautioned by this court to refrain from engag-
ing in histrionic or written personal attacks against each
other. Jd. at 904. We refer them again to Judge Wood’s
admonishment and sound advice. But this “intimidation”
argument has become a hollow refrain. There is no excuse
for the outburst, but the outburst (unlike Mealy, not in
the presence of the jury) is no excuse for demanding a
new trial. The contention that the defendants were de-
prived of a fair trial because of their attorneys’ fear that
they themselves would be the target of prosecutorial re-
10 Nos. 89-1719, 89-1721, 89-1740 & 89-1746
prisals has no merit. Carr’s indignant reaction in “the heat
of battle’ was wrong, but other than resulting in an op-
portunity for tactical posturing by the defense, it had no
effect on the trial. The court was correct in dismissing
the defendants’ motion to disqualify Carr, and we find no
reversible error stemming from Carr’s behavior under the
circumstances.
B. Severance of Defendant Marren
James J. Marren was indicted, along with the other de-
fendants in this action, for conspiracy to distribute mari-
juana. Attorney Stephen J. Finta entered his appearance
on behalf of defendant Marren. Trial against Marren, to-
gether with the other defendants in this action, com-
menced on November 15, 1988. Three days later the court
declared a recess until November 29.
On November 29, 1988, the government filed a Motion
for Disqualification of Attorney Finta and for severance
of defendant Marren from the others on trial with him.
The motion alleged that during the court’s recess credi-
ble government witnesses indicated that Finta “might be
tied into [the] conspiracy that’s alleged [in this case] or
the overall [Lanier] conspiracy.”” Consequently, the govern-
ment asserted that disqualification and severance were re-
quired because defendant Marren “ha[d] a built-in conflict,
and a built-in reversal” based on his attorney’s critical
conflict of interest. Indeed, there was evidence ting
that Finta had been operating as a front man for Rae
making arrangements for the importation and stashing of
marijuana. Marren was ordered to obtain new counsel and
got a new trial.
The court disqualified Finta and severed Marren’s cause
for separate adjudication. Marren and Finta appealed. This
court reviewed that decision of the district court and af-
firmed. United States v. Marren, 919 F.2d 61 (7th Cir.
1990). In so holding, this court found that Finta “was
properly disqualified because identifiable improprieties in-
volving him were shown and because public suspicion would
Ewe
Nos. 89-1719, 89-1721, 89-1740 & 89-1746 ll
outweigh any interest in his continuing representation.”’
Id. at 63. This court also affirmed Marren’s mistrial based
on manifest necessity, finding that Finta’s necessary dis-
qualification from the case would have an “‘unacceptabl[e]
[elffect” upon the jury. This court affirmed the district
judge in his belief that the proceedings wouid be tainted
by Finta’s replacement by another counsel, or in the alter-
native, bj his “double role as counsel and unsworn wit-
ness.” Id.
The defendants in the present case asked the court that
a general mistrial be declared for all the defendants when
their co-defendant Marren was removed from the trial.
The defendants believe that the district court’s refusal to
grant a mistrial for everyone caused them to suffer “‘dis-
tinct prejudice.” Essentially, the defendants feel that tk
Finta disqualification and Marren mistrial prejudiced the
jury against the remaining defendants.
Denial of a motion for a mistrial is subject to the abuse
of discretion standard of review. United States v. Faulk,
816 F.2d 1202, 1205 (7th Cir. 1987); United States v. Phil-
lips, 640 F.2d 87, 91 (7th Cir. 1981). In deciding whether
the court abused its discretion, we assume that a trial
judge is in the best position to determine whether an in-
cident was so serious as to warrant a mistrial. United
States v. Liefer, 778 F.2d 1236; 1245-46 (7th Cir. 1985).
We have previously upheld a trial court’s exercise of dis-
cretion in issuing a cautionary instruction, rather than
declare a mistrial, to cure any potential prejudice. See
Faulk, 816 F.2d at 1205-06; Liefer, 778 F.2d at 1246. The
district court in this case was careful to announce caution-
ary instructions immediately after the jury was called in
following the day-long hearing and resolution of the dis-
qualification and severance matter conducted out of the
ury’s presence. The jury was instructed not to concern
itself with the absence of defendant Marren, and to decide
the case against each defendant based on the evidence
introduced against the individual defendant.
12 Nos. 89-1719, 89-1721, 89-1740 & 89-1746
Moreover, this court has already ruled on the timeli-
ness of the government’s motion for Finta’s disqualifica-
tion, and the adequacy of the notice to Marren and his
opportunity to be heard on the disqualification and sever-
ance issue. We found that the government acted proper-
ly in bringing its motion te disqualify Finta as soon as
the evidence against him became known to the govern-
ment. Marren, 919 F.2d at 62. We also held that Marren
had a hearing on the issue and an opportunity to move
for a continuance (which he did not do) for further re-
search and briefing. Jd. at 63. In Marren we rejected the
claim that Finta’s and Marren’s dismissal from this case
was the product of prosecutorial abuse or manipulation
or that the district court’s decision to grant the govern-
ment’s motion for disqualification and severance was an
abuse of discretion. Jd. at 63-64. We therefore reject the
same claim presently urged by the current defendants for
the same reasons.
We find that the trial court did not abuse its discretion
in denying the defendant’s motion for a mistrial where
the interest of justice required the removal of a tainted
lawyer and his adversely affected client from the proceed-
ings, and where any possible prejudicial effects of such
removal on the jurors’ minds, with respect to the remain-
ing defendants, was cured by the court with an immediate
cautionary instruction and a jury instruction at the trial’s
conclusion reminding them of their duty to consider sep-
arately the evidence against each defendant. Cf United
States v. Barrientos, 758 F.2d 1152, 1157 (7th Cir. 1985)
(“Failure to instruct a jury regarding a co-defendant’s
mid-trial absence . . . has rarely been found to be plain
error.’’).
C. Prosecutor’s Misleading Comments During
Final Argument
The defense claims that the district court erred when
it failed to correct a purported prejudicial mistake in the
government’s rebuttal to defense’s closing argument. In
ae
ie ct Oe
et ee eee eee vere
Nos. 89-1719, 89-1721, 89-1740 & 89-1746 13
closing, defense counsel argued that while appellants may
have committed substantive drug offenses in other judicial
districts, they were not guilty of the charged conspiracy.
In effect, the defense was claiming that the defendants
should be acquitted here (since they did not purposefully
avail themselves of the Southern District of Illinois in
the commission of their misdeeds) and instead should be
charged with criminal offenses in the areas of the coun-
try where the bulk of their illegal conduct occurred.
In this rebuttal, Assistant U.S. Attorney Carr said:
Let them be charged in Pennsylvania. Mr. Malkin
said, let them be charged in Pennsylvania. Mr. Shep-
pard [Marcum’s attorney] said, let them be charged
in Florida or Pennsylvania but not here. Well this is
it, folks. The plea agreements that they have talked
about where they say they can be charged in all
these other counts (sic) [It should read “courts’’],
there is a section in the plea agreement that they
didn’t read out loud that’s underlined. It Says to the
extent that the double jeopardy clause applies.
Well what does that mean? That means this is the
trial. You only have to go to trial once for the charge.
It’s right here. The idea let them be charged in Phil-
adelphia or Florida, that’s gone. The double jeopardy
clause applies. It’s in all the plea agreements. Those
other people can’t be charged for some offense in
Missouri that this same conspiracy is charged. It’s
unconstitutional and they know it.
The defense accuses Attorney Carr of trying to misin-
form the jury that if appellants were acquitted of the con-
spiracy charge, the doctrine of double jeopardy would bar
prosecution for substantive acts, such as possession with
intent to distribute marijuana or distribution of marijuana,
in other districts. Based on their interpretation of Attor-
ney Carr’s statement, the defendants objected to what
they thought was a misstatement of the law since dou-
ble jeopardy does not bar successive trials on conspiracy
and the underlying substantive counts. Pereira v. United
14 Nos. 89-1719, 89-1721, 89-1740 & 89-1746
States, 347 U.S. 1, 11 (1954); United States v. Craig, 573
F.2d 455, 485 (7th Cir. 1977); United States v. Cortwright,
528 F.2d 168, 176 (7th Cir. 1975). The defense thus made
a request for a curative instruction. The district court
declined to give a curative instruction. The defense claims
on appeal that they were prejudiced when the prosecu-
tor’s “erroneous” remarks were allowed to stand, giving
the jury an added sense of urgency to convict the defen-
dants in the present proceeding notwithstanding the ap-
plicable legal standards.
The prosecutor’s statement, in its context, was not an
erroneous statement of the law. Drug offenses committed
in Pennsylvania constituted the basis of the conspiracy
charged in the Southern District of Illinois. If the govern-
ment brought a subsequent conspiracy charge in Pennsy]-
vania, then the Double Jeopardy Clause would intervene
because in that case pH ts ey would be prosecuted for
the same offense. The prosecutor’s comment, on its face,
cannot seriously be understood to mean that charges con-
cerning the lesser-included offenses constituting a con-
spiracy in this case could never be brought against the
defendants if they are acquitted. The prosecutor only ac-
knowledged the well-understood rule that the government
could not charge another conspiracy against the defendants
based on the same conduct used to prove this conspiracy.
If we thought that the prosecutor’s statement could be
construed as the defendants construe it, a question arises
as to whether the prosecutor accurately described what
the Double Jeopardy Clause prohibits. In Grady v. Cor-
bin, 110 S.Ct. 2084 (1990), the Supreme Court held that
the Double Jeopardy Clause bars any subsequent
prosecution in which the government, to establish an
essential element of an offense charged in that pros-
ecution, will prove conduct that constitutes an offense
for which the defendant has already been prosecuted.
. . . The critical inquiry is what conduct fhe state
will prove, not the evidence the state will use to
prove that conduct.
;
]
:
:
3
:
;
Nos. 89-1719, 89-1721, 89-1740 & 89-1746 15
Id. at 2093. Two circuits have construed this language
broadly, essentially holding that the Double Jeopardy Clause
bars successive prosecutions not only for the same offense
but also for the “conduct” or “actions” that contributed
to that offense. United States v. Felix, 926 F.2d 1522 (10th
Cir. 1991); United States v. Calderone, 917 F.2d 717 (2d
Cir. 1990). This approach would probably bar subsequent
prosecutions for the substantive crimes underlying the
conspiracy in this case. Other circuits have construed Grady
in a way that probably would allow subsequent prosecu-
tions for the substantive crimes here. United States v.
Clark, 928 F.2d 639 (4th Cir. 1991); United States v. Gon-
zalez, 921 F.2d 1530 (11th Cir. 1991); see also Felix, 926
F.2d at 1532-35 (Anderson, J., dissenting). We do not need
to take sides in this dispute,? however, since we have held
that the jury was unlikely to construe the prosecutor’s
statement in context as referring to anything other than
. Se prosecution for the conspiracy charged in
this case.
Even if it was error for the.court to refuse a curative
instruction or an explanation to the jury concerning the
various remaining criminal charges which could be brought
against the defendants and the remaining suitable jurisdic-
tions for prosecutions, the error is harmless. Under Rule
52(a) of the Federal Rules of Criminal Procedure, any er-
ror “which does not affect substantia! rights should be
disregarded,” and designated as “harmless.” In consider-
ing whether a non-constitutional error is harmless, “{oJur
task is to gauge ‘what effect the error had or reasonably
may have had upon the jury’s decision.’ ” United States v.
Zapata, 871 F.2d 616, 622 (7th Cir. 1989) (quoting United
States v. Shepherd, 576 F.2d 719, 723 (7th Cir. 1978). Only
2 It is possible this conflict may not be long-lived. The Supreme
Court has granted certiorari in Felix. See 112 S.Ct. 47 (1991). A
petitior. for certiorari filed by the Solicitor General is still pend-
ing. Ironically, in both petitions for certiorari the Solicitor General
has argued for the narrower interpretation of Grady, the position
opposite to that the government urges in this case.
16 Nos. 89-1719, 89-1721, 89-1740 & 89-1746
if we are convinced that the error did not influence the
jury or had only a very slight effect, and can so say with
fair assurance, should we hold the error as harmless. United
States v. Shackleford, 738 F.2d 776, 783 (7th Cir. 1984);
see also United States v. Beasley, 809 F.2d 1273, 1280
(error is harmless unless it results in actual prejudice or
‘“‘ ‘had substantial and injurious effect or influence in de-
termining the jury’s verdict’ ” (quoting United States v.
Lane, 474 U.S. 488, 449 (1986))). Here an examination of
the rebuttal, together with the rest of closing arguments
and the evidence at trial, convinces us that any error was
harmless. The jury was properly instructed as to the na-
ture of the charged offenses and the requirements for con-
viction. The government’s proof satisfactorily yt ase and
perhaps compels, a jury finding of guilt as to the charged
violations without the government’s purportedly ambigu-
ous double jeopardy assertion. In light of the strength of
the government’s case, even if there was error the court’s
failure to issue a curative instruction referring to the pros-
ecutor’s double-jeopardy characterization would have been
harmless. We find no prejudicial error in the prosecutor’s
remarks nor an abuse of trial court discretion in denying
the defense’s motion for a curative instruction.
D. Theory of Defense Instruction
The defendants claim that the court erred by refusing
to give their theory of defense instruction. At issue is the
defendants’ proposed Instruction No. 14 which stated:
The defendant is not on trial for any act or conduct
not alleged in the indictment. (Emphasis added.)
The district court rejected this formulation and inserted
its own instruction, one that gave a more precise focus
on the nature of the charge against the defendants (con-
spiracy) and what is necessary to make o! dats finding
of guilt. The court’s jury instruction read:
You may judge the defendants only on the charges
alleged in the indictment. You may not convict them
of any other alleged conspiracy in the event you should
Nos. 89-1719, 89-1721, 89-1740 & 89-1746 17
conclude that they have engaged in some other con-
spiracy. Therefore, if you are not convinced beyond
a reasonable doubt that a particular defendant know-
ingly and intentionally joined the conspiracy alleged
in the indictment, you must find that defendant not
guilty.
Even if you find that a particular defendant know-
ingly and intentionally joined a conspiracy other than
that alleged in the indictment, you should nonetheless
find that defendant guilty of the charge alleged in
the indictment if you are convinced beyond a reason-
able doubt that the defendant knowingly and inten-
tionally joined the single overall conspiracy that is
alleged in the indictment and the elements of which
are otherwise contained in these instructions. (Em-
phasis added.)
The defense claims in their brief (Joint Brief, pp. 53-56)
that the given instruction (in contrast to their proffered
instruction No. 14) fails to address the defendants’ theory
of defense, namely the need for the government to prove
that the acts charged in the indictment were committed
in the Southern District of Illinois, as opposed to other
jurisdictions. The defendants claim that they “were en-
titled to their instruction [No. 14] as worded, since it prop-
erly focused attention on the issue and was not merely
an isolated sentence of a much larger multiple conspiracy
instruction.” (Def. Joint Br. 54)
The wording of the defendants’ proposed Instruction No.
14 does not, as is claimed, actually focus attention on the
issue of whether the government failed to prove that acts
charged in ‘the indictment were committed in the Southern
District of Illinois as opposed to other jurisdictions. Their
instruction completely ignores the issue of venue altogether.
It is a mystery how the defense believes that Defense
Instruction No. 14 legaliy (or logically) relates to the de-
fendants’ venue-based theory of defense at all.
In any event, Rule 30 of the Federal Rules of Criminal
Procedure requires a defendant to object to the judge’s
18 Nos. 89-1719, 89-1721, 89-1740 & 89-1746
refusal to tender an instruction and clearly state the rea-
sons for his objection. United States v. Jackson, 569 F.2d
1003, 1009-10 (7th Cir.), cert. denied, 487 U.S. 907 (1978).
Failure to do so constitutes waiver of all but prejudicial
plain error. Jd.; Fed. R. Crim. P. 52(b). In this case defen-
dant Flynn completely waived this issue when his attor-
ney asserted that defense instruction No. 14 should be
withheld from the jury and urged the use of a modified
version instead. Only Canino, Marcum, and Malkin objected
to the court’s refusal to give instruction No. 14—but none
preserved the claim that this instruction was a theory of
defense. Thus, we will review the district court’s failure
to give the defendants’ proffered instruction only for plain
error. United States v. Green, 779 F.2d 1818, 1319-1320
(7th Cir. 1985).
Plain error must be of such a great magnitude that it
probably changed the outcome of the trial, see United
States v. Silverstein, 732 F.2d 1338, 1349 (7th Cir. 1984),
cert. denied, 469 U.S. 1111 (1985), or if uncorrected, the
error results in a miscarriage of justice, id. The court’s
refusal of Defense Instruction No. 14 was not plain error.
First, Instruction No. 14 is not itself an accurate state-
ment of the law in that it suggests that “conduct” and
“acts” not alleged in the indictment should be excluded
from the jury’s consideration of the defendants’ guilt with
respect to the CCE and conspiracy charges. This instruc-
tion is at odds with the indictment itself. It is also in con-
flict with the court’s ruling which permits evidence of acts
or conduct not charged in the indictment. Such acts and
conduct are elements of the CCE count and the conspiracy
count and are proper issues for consideration by the jury.
Moreover, the instruction offered by the court simply re-
words the thrust of the defendants’ instruction—clearly
indicating that the defendants are on trial for only the
charges (i.e., conspiracy or CCE) listed in the indictment,
and no others. The tendered instruction was clear and in
conformance with the law of this case. The defendants
were not denied a fair trial as a result of the court’s re-
fusal to give their instruction.
Nos. 89-1719, 89-1721, 89-1740 & 89-1746 19
E. Jury Instruction Relating to the Buyer-Seller
Relationship Between Defendants
The defendants also claim that the district court com-
mitted error when it refused to give the following recom-
mended instruction to the jury concerning their theory
of defense that they were mere purchasers from the con-
spiracy:
Mere proof of the existence of a buyer-seller relation-
ship is not enough to convict a co-conspirator on drug
conspiracy charges. Merely purchasing drugs or other
property from the conspiracy, standing alone, can
never establish membership in the conspiracy.
Our cases make clear that merely purchasing or selling
drugs or other property from a conspiracy, standing alone,
will not establish membership in a conspiracy. See United
States v. Manzella, 791 F.2d 1263, 1265 (7th Cir. 1986);
United States v. Keck, 773 F.2d 759, 768 (7th Cir. 1985).
However, our cases also make clear that a defendant is
entitled to have a buyer-seller instruction only if such a
theory is supported by the evidence. “Each drug conspir-
acy case must be analyzed according to its specific facts
to determine whether a buyer-seller instruction is appro-
priate.” United States v. Douglas, 818 F.2d 1317, 1321
(7th Cir. 1987). In an effort to distinguish between those
defendants who are purchasers to strictly supply their per-
sonal consumption versus purchasers who are drug dis-
tributors,? Douglas establishes that a court, in deciding
whether an instruction is supported by the evidence in
a particular case, may choose to consider such factors as:
the quantity of drugs involved (in this case truckloads con-
taining hundreds of thousands of pounds); the resale value
of the drugs involved (here, millions of dollars’ worth);
whether the defendants were addicts (no evidence of this
* In United States v. Marks, 816 F.2d 1207 (7th Cir. 1987), this
court stated: “One who buys from a conspirator for resale is a
member of the conspiracy
Id. at 1212.
he knows at least its general aims.”
20 Nos. 89-1719, 89-1721, 89-1740 & 89-1746
in the case); and, whether a jury could reasonably believe
the quantity and quality of drugs are generally used for
personal consumption (inconceivable in this case). More-
over, the court must consider whether the defendant has
put forth the buyer-seller defense at trial.
In this case, based on the factors outlined in Douglas,
the facts support the exclusion of the defendants’ proposed
instruction. In addition, the trial transcript is void of any
assertion by any of the defendants that they were merely
buyers or sellers—their defense was that their activities
could not be prosecuted in the Southern District of Illinois.
Therefore, the defendants were in no way prejudiced by
the court’s failure to give a buyer-seller instruction; such
an instruction would have been an absurdity given the
evidence submitted at trial.
F. Venue Instruction
The defendants claim that it was error for the court
to issue a jury instruction which only required the govern-
ment to prove by a preponderance of the evidence that
venue oft wey in the Rouben District of Illinois. The de-
fendants claim that the jury should have been instructed
that the government was required to prove a be -—
a reasonable doubt. The sole authority cited b
in their brief for their contention is United bows v. =
drus, 775 F.2d 825 (7th Cir. 1985), which states:
Defendants . . . argue that venue is not proper in
the Central District of Illinois. Venue is an essential
element of an offense that the government must prove
beyond a reasonable doubt.
Id. at 846.
The defense is ill-served by relying upon the above-
quoted passage from Andrus as being the law of this cir-
cuit. The quoted passage was merely a portion of this
court’s paraphrage of the defendant’s argument in the An-
drus case—it was not a holding. A little further along in
that decision, in response to the quoted characterization
Nos. 89-1719, 89-1721, 89-1740 & 89-1746 21
on the law of venue, this court wrote: “In United States
v. Mayo, 721 F.2d 1084 (7th Cir. 1983), this court rejected
the argument defendants press here.” The law of this cir-
cult is that venue is shown by a preponderance of the
evidence, which may include inferences drawn from cir-
cumstantial evidence. United States v. Marrinson, 832
F.2d 1465, 1475 (7th Cir. 1987); United States v. Lewis,
797 F.2d 358, 366 (7th Cir. 1986); United States v. Rogers,
755 F.2d 538, 549 n.19 (7th Cir.), cert. denied, 473 U.S.
907 (1985); United States v. Martin, 732 F.2d 591, 593 (7th
Cir. 1984). The instruction given by the district court re-
quiring that venue be established by a preponderance of
the evidence was correct.
G. Disclosure of Presentence Reports
The defendants claim as error the failure of the trial
court to disclose presentence reports of unindicted co-
conspirators who were called into court as witnesses.
Generally, presentence reports are helpful in effectively
cross-examining witnesses because these reports may con-
tain impeachment material. They may also contain excul-
patory material culled from investigations and dealings
with co-conspirators. United States v. Anderson, 724 F.2d
596, 598 (7th Cir. 1984).
Nine months before trial began, the defendants filed a
Motion for Production of Presentence Reports of the gov-
ernment’s accomplice witnesses and an alternative motion
for in camera inspection to determine the possible bene-
ficial contents of such reports. The court entered an order
denying the request for production due to the lack of any
exculpatory evidence in those reports, but granted the re-
view of such relevant documents in camera for the purpose
of finding impeachment material useful in cross-examining
the government’s witnesses. However, the court required
the defendants to notify the court of relevant reports that
they especially wished to be reviewed. The district court
did make periodic examinations and rulings on the exis-
tence of exculpatory or impeachment material in the pre-
22 Nos. 89-1719, 89-1721, 89-1740 & 89-1746
sentence reports as requested by the defendants. Indeed,
the court’s decision is in accordance with established prec-
edent in this area. In Anderson, this court held:
Defendant’s request that we extend Figurski and Cy-
phers to create a duty in the trial courts to disclose
presentence reports about witnesses at the mere re-
quest of a criminal defendant is rejected. Rather, we
uphold [that] . . . [wJhen a defendant suspects that
a witness’ presentence report contains impeachment
material, he should request the trial court to make
an in camera examination of the report. If the ex-
amination reveals no impeachment material, the judge
should so state; in that case, the triai judge should
reveal no portion of the presentence report to defense
counsel. If there is any impeachment material in the
report, the judge should reveal to the defendant only
the portions of the report that contain the impeaching
material.
Id. at 598.
However, the defendants claim that the district court’s
review of the witnesses’ presentence reports was untimely.
The defense claims that the district court very often did not
review the presentence reports of the witnesses until well
after they had testified—making the in camera review
perfunctory and useless. In United States v. Figurski, 545
F.2d 389, 391 (4th Cir. 1976), the Fourth Circuit noted that
the proper evaluation of the significance of information
in the reports involved the appraisal of many factors likely
to affect the trier of fact. “Wades many circumstances a
ruling on a request for disclosure must be delayed until
proffers of evidence can be made or until the government’s
case or the entire case has been presented so that the
protected information can be examined in context. Jd. at
392.
While the pretrial order entered by the court granted
the defense motion for in camera review of the presen-
tence reports, the court did instruct the defendants to
notify the court of relevant reports that must be reviewed.
Nos. 89-1719, 89-1721, 89-1740 & 89-1746 23
Very often the defendants made their request for review
at the last minute or during the cross-examination of the
witness. It is no surprise that the results of the court’s
im camera review was sometimes not synchronized with
defense counsel’s needs and requirements. Nevertheless,
Figurski does not require review of presentence reports
prior to cross-examination as the defense argues in its
brief. The procedure requested by the defense counsel and
followed by the trial judge was identical to the one ap-
proved by this court in Anderson, where we held that
the trial court’s in camera examination of the presentence
report, in combination with alternative avenues of im-
peachment, did not deprive the defendant of an effective
defense.
H. Grand Jury Abuse
The defendants alleged abuse and prosecutorial miscon-
duct before the grand jury. The government denied the
allegation and provided the grand jury transcript for re-
view by the district court. The defense moved that the
transcript be released to them for their inspection. The
district court denied the motion.
In order for a party to gain access to the normally in-
accessible transcripts of proceedings before a grand jury,
there must be a showing of particularized need. United
States v. Edelson, 581 F.2d 1290, 1291 (7th Cir. 1978).
Mere unsupported speculation of possible prosecutorial
abuse does not meet the particularized need standard. Id.
at 1291. To begin with, the defense, in its brief, has not
pointed to anything in the record which might suggest
that the prosecutor engaged in improper conduct before
the grand jury. We are left with only the defense’s sus-
picious hunch, as the following excerpt from the defense’s
brief revealed:
Here, the Government has never denied, nor con-
troverted defendants’ allegations of abuse. Appellants
have never viewed the grand jury insuructions on the
law. Appellants reason that based on the indictment
24 Nos. 89-1719, 89-1721, 89-1740 & 89-1746
itself, which does not contain a single, specific fact,
the grand jury could not have been provided with
anything other than erroneous, inadequate or mislead-
ing instructions on the elements, including venue, of
the crimes charged against each defendant. The Gov-
ernment’s failure to deny or controvert the defense
allegations should be considered as an admission of
defendants’ allegations.
(Joint Br. p. 75.)
If a defendant wishes to determine whether the grand
jury minutes contain any information inconsistent with the
evidence offered by the government, ‘“‘the proper proce-
dure [is] to ask the district judge to examine the minutes
im camera and report on the record whether they contained
such inconsistent information.” Edelson, 581 F.2d at 1292.
The defense made the request, and the court made the
inspection and found no alleged improprieties. We find no
reversible error.
III. Canino’s Objections
Defendant Michael Canino makes four specific objections
to his conviction. He claims the district court erred: (a)
when it permitted the jury to rely on the unindicted “‘Ja-
maica Load’”’ crime as a predicate act for his CCE con-
viction; (b) when it made a “highly prejudicial” unilateral
communication with the jury after they began delibera-
tion; (c) when it failed to instruct the jury that they must
reach unanimous agreement as to the predicate acts con-
stituting the Continuing Criminal Enterprise charge; and
(d) when it permitted Canino’s conviction and sentencing
on both the Continuing Criminal Enterprise count and the
lesser included conspiracy count.
A. Permissibility of Use of an Unindicted Crime as
a Substantive Predicate in a Continuing Criminal
Conspiracy
Michael Canino contests his conviction under the CCE
statute. One of the elements of the CCE offense is that
one
Nos. 89-1719, 89-1721, 89-1740 & 89-1746 25
the defendant supervise five or more others in “a con-
tinuing series of violations” of the drug laws. Though the
Statute does not necessarily require it, courts commonly
define “series” as three or more offenses. See United
States v. Baker, 905 F.2d 1100, 1102-03 (7th Cir. 1990),
The jury instruction in this case did so. The court in-
structed the jury that:
Thus, you must find beyond a reasonable doubt that
the defendant is guilty of conspiracy to distribute
more than 1,000 pounds of marijuana as charged in
Count II and/or that he is guilty of knowingly and
intentionally distributing marijuana or possessing with
intent to distribute marijuana as set forth in para-
graphs A through E of Count I of the indictment or
he is guilty of knowingly and intentionally distrib-
uting or possessing with intent to distribute mari-
juana from a Jamaica Load in 1984, and that this con-
duct, together with any additional violations of the
federal drug laws constituted a total of three or more
violations of the federal drug laws committed over
the period of time charged in Count I with a single
or similar purpose. This will constitute a finding that
the defendant engaged in a continuing series of vio-
lations.
As the above-quoted jury instruction makes clear, the
CCE count of the indictment did not mention the “Jamaica
Load” incident as one of the convictable predicate acts.
However, the CCE count reads: “{[t]hat Michael John
Canino knowingly organized a continuing series of federal
drug trafficking violations] which violations include three
or more of the violations set forth in count 2 (the conspir-
acy charge] of this indictment and in paragraphs A through
E [the five listed predicate acts of count 1).” Therefore
the indictment is open-ended and non-exclusive with re-
spect to the predicate acts necessary for conviction because
it conditions a CCE conviction in Count 1 on any circum-
stances and events introduced under Count 2—which has
no itemized predicate acts.
26 Nos. 89-1719, 89-1721, 89-1740 & 89-1746
Several courts, including this one, have held that the
government need not list the predicate acts in the indict-
ment: Baker, 905 F.2d at 1103 Gury not limited to crimes
charged in the indictments); United States v. Markowski,
772 F.2d 358, 361-62 (7th Cir. 1985); United States v. Aiello,
864 F.2d 257, 265 (2d Cir. 1988). And the “‘continuing series
of violations” referred to in § 848 refers to offenses, not
necessarily convictions. Markowski, 772 F.2d at 361. The
only question then is whether the defendants knew of the
offense in order to defend. In United States v. Moya-
Gomez, 860 F.2d 706, 752 (7th Cir. 1988), the court treated
as significant the fact that although not listed in the in-
dictment, the defendant had actual notice of the predicate
acts on which the government would rely and the fact
that the defendant did not contend that he was unable
to defend against the charges. The court in that case re-
lied on United States v. Becton, 751 F.2d 250, 256 (8th
Cir. 1984), cert. denied, 472 U.S. 1018 (1985), which held
that if a defendant has actual notice of activities to be
introduced by the government, due process is satisfied
regardless of whether offenses are charged.
In this case, Canino had plenty of notice that the gov-
ernment was aware of the “Jamaica Load”’ offense and
eager to introduce it at trial. In fact, an appreciable por-
tion of the pleadings and almost a volume of the pretrial
transcript are concerned with the proper method of treat-
ing this evidence (i.e., exclusion, circumstantial evidence,
Fed. R. Evid. 404(b) evidence, or predicate act for the
CCE). Canino had notice and opportunity to rebut, de-
bunk, and defend himself from the implications of this
evidence. We find that, consistent with Baker, the govern-
ment had no obligation to list the “Jamaica Load” offense
as a predicate act, and Canino was not denied due process
because he had sufficient notice and opportunity to
prepare a defense against the “Jamaica Load” evidence
for the purposes that the government introduced it.
ee
j
Nos. 89-1719, 89-1721, 89-1740 & 89-1746 27
B. Court’s Unilateral Communication With the Jury
The jury began its deliberations in this case at 3:10 p.m.
on January 27, 1989. At 6:30 p.m. that same day the jury
asked the court the following question in writing:
Ub 6 lS ORC eA i a art
to and including June 1987,” does this mean the de-
Members of the jury, in response to your question
the time frame of the offense in Count 1 must be
within the period alleged in the indictment but the
defendant need not have committed the offense for
the precise length of time stated in the indictment.
(a) The defendant shall be present at the arraign-
ment, at the time of the plea, at every stage of the
trial including the impanelling of the jury and the
return of the verdict, and at the imposition of sen-
tence, except as otherwise provided by this rule.
Cases interpreting the rule have made it clear that de-
fense counsel should be given an opportunity to be heard
before the trial judge responds to the jury. Rogers v.
United States, 422 U.S. 35 (1975); United States vy. Burns,
683 F.2d 1056 (7th Cir. 1982). The record reveals that the
parties were immediately made aware of the jury’s ques-
28 Nos. 89-1719, 89-1721, 89-1740 & 89-1746
struction in full. However, the judge finally submitted to
the jury his earlier recommended answer, and then noti-
fied the parties of his decision and his action. The answer
given by the court was an accurate statement of the law
and in accordance with the written jury instructions sub-
mitted to the jury. Cf United States v. Velez, 652 F.2d
258, 261-62 (2d Cir. 1981). Therefore, Canino’s objection
is denied and we find no reason to disturb the jury’s ver-
dict on this basis.
Canino insists that the court should have recharged the
jury on the essential elements of the offense. He claims
prejudice since the jury rendered a verdict shortly after
the response was given. But the jury’s question did not
demonstrate confusion about all of the instructions at hand.
Rather, the jury simply asked whether the defendant had
to have continuous involvement between 1980 and 1987.
The obvious answer was ‘“‘no” (the one the government
preferred). The court’s simple response answered the jury’s
question without embellishment, without distorting or sub-
ordinating the body of the instructions. The response was
accurate and even-handed, and the defendant was not
prejudiced. See Velez, 652 F.2d at 262 (“{A] supplemen-
tal charge is not defective where it responds iaotastely
to the jury’s request for clarification.’’).
C. Court’s Failure to Give Jury Unanimity Instruction
on Predicate Acts Constituting Continuing Series
Canino argues that he has been prejudiced because the
district court did not instruct the jury that it had to unani-
mously agree on which drug offenses offered into evidence
constitute the series of three drug offenses the jury was
instructed were necessary for a conviction under the CCE
statute.* Canino cites United States v. Echeverri, 854 F.2d
‘ The relevant portion of the CCE statute reads as follows:
(c) Continuing criminal enterprise defined
For purposes of subsection (a) of this section, a person is
engaged in a continuing criminal enterprise if—
(Footnote continued on following page)
dion oh teria dl
Nos. 89-1719, 89-1721, 89-1740 & 89-1746 29
638 (3d Cir. 1988), in which the Third Circuit held that
it was reversible error for a district court to fail to in-
struct a jury that they “must unanimously agree on which
three acts constitute the continuing series of violations.”
Id. at 642.5
The Third Circuit in Echeverri clearly requires jury
unanimity as to the three acts necessary for conviction
under the CCE statute where the government offers evi-
dence of numerous criminal violations, any three of which
would substantiate the CCE charge. The court concluded
that a “defendant is entitled to have the court insist on
unanimous agreement as to all essential elements of the
4 continued
(1) he violates any provision of this subchapter or sub-
chapter II of this chapter the punishment for which is a
felony, and
(2) such violation is a part of a continuing series of viola-
tions of this subchapter or subchapter II of this chapter—
(A) which are undertaken by such person in concert
with five or more other persons with respect to whom
such person occupies a position of organizer, a super-
visory position, or any other position of management,
and
(B) from which such person obtains substantial in-
come or resources.
The statute and the legislative history are silent on what precise-
ly constitutes a “continuing series.” While the court instructed the
jury in this case that three violations were necessary to constitute
a series, in United States v. Baker, 905 F.2d 1100 (7th Cir. 1990),
we held that only two offenses—excluding a conspiracy or some
other inchoate offense—are necessary to constitute a series. The
district court’s instruction that three offenses were necessary gave
Canino more than he was entitled to.
° Rule 31(a) of the Federal Rules of Criminal Procedure requires
that a jury verdict in a federal criminal trial be unanimous. See
Johnson v. Louisiana, 406 U.S. 356 (1972) (Sixth Amendment re-
quires unanimous verdict in federal criminal trial).
30 Nos. 89-1719, 89-1721, 89-1740 & 89-1746
crime charged.” Echeverri, at 643.6 Curiously, however,
in United States v. Jackson, 879 F.2d 85 (3d Cir. 1989),
the Third Circuit did not apply this principle to the other
part of the statute which requires the CCE defendant to
have supervised at least five or more underlings in his
enterprise. The court reasoned that:
Unlike the three offenses necessary to constitute a
series, which is the conduct which the CCE statute
is designed to punish and deter, the identity of these
underlings is peripheral to the statute’s other primary
6 The Echeverri court claims to rely on United States v. Beros,
883 F.2d 455 (3d Cir. 1977), which itself relies heavily on United
States v. Gipson, 553 F.2d 453 (5th Cir. 1977) as su a S. for its
holding on jury unanimity for the predicate acts in a
While Gipson did require jury unanimity in order to convict a e-
fendant under the criminal statute in that case, the statute Gipson
examined is very different from the CCE. In Gipson the defen-
dant was charged under 18 U.S.C. § 2313 which provided a prison
sentence and a fine to “{wJho[mJever receives, conceals, stores,
barters, sells or ay vend of stolen cars. The iors Circuit, in Gip-
son, reviewed the district court’s nse to : n which
read, in part: “If all twelve [juro a same t at e defendant)
had done some one of those acts [i.e., oaey ins thinks the defen-
dant sold the stolen car, juror two thinks the defendant concealed
it, ete.], but there was not agreement that he had done the same
act, would that support a conviction? The answer is yes.” Jd. at
456 (emphasis added). The Fifth Circuit said no, and remanded
the conviction for a new trial. The Fifth Circuit felt that the sub-
stantive acts listed in the statute were too disparate in kind (con-
cealing, receiving, and storing on the one hand versus bartering,
selling, and disposing on the other) that absent a specific unanimity
instruction it was unclear whether the defendant was convicted
for one class of offense or the other. This dichotomy in 18 U.S.C.
§ 2313 is not duplicated in the CCE. The CCE provides special
penalties for one who engages in a “continuous series of violations”
of federal drug laws. The e ive breadth of culpable offenses
suitable for CCE treatment diminishes our need to ascertain pre-
cisely what acts each juror finds attributable to the defendant, and
instead permits us to focus on whether the jury is convinced that
the defendant performed these conspiratorial acts with the re-
quired frequency.
Nos. 89-1719, 89-1721, 89-1740 & 89-1746 31
concern, which is the defendant’s exercise of the req-
uisite degree of Supervisory authority over a sizeable
enterprise.
Jackson, 879 F.2d at 88-89.
Jackson represents a cautious departure from Echeverri—
a departure which enables the Third Circuit to achieve
mary concern” (i.e., defendant’s authority over the illegal
enterprise). We see no basis for the Third Circuit’s distine-
tion. 21 U.S.C. § 848 makes both (a) the defendant’s com-
mission of a continuing series of drug violations and (b)
the defendant’s control over “5 or more” other persons
to be joint and necessary conditions for a violation of, and
conviction under, the CCE. In its process of distinguishing
Echeverri, the Third Circuit took the lead from this cir.
cuit when it concluded that the question of jury unanimity
relating to the “five or more” underlings component should
also be answered with reference to the CCE’s serious pol-
icy considerations. The Jackson court states:
As the First and Seventh Circuits explained in [United
States v.] Tarvers [833 F.2d 1068 (1st Cir. 1987)] and
[United States v.] Markowski (772 F.2d 358 (7th Cir.
1985)], the five or more persons requirement of a CCE
offense simply defines the size of the enterprise. This
establishes that the organization in which the defen-
dant played a leadership role was sufficiently large
to warrant the enhanced punishment provided by the
CCE statute. Cf United States v, Aguilar, 843 F.2d
155, 157 (8d Cir.), cert. denied, ___ U.S. ____, 109
S.Ct. 305 (1988)... . (in enacting § 848, Congress was
clearly concerned with “ ‘large-scale profit-making
enterprises engaged in the illegal importation, manu-
facture and distribution of controlled substances.’ ”
32 Nos. 89-1719, 89-1721, 89-1740 & 89-1746
(quoting United States v. Valenzuela, 596 F.2d 1361,
1367 (9th Cir.), cert. denied, 444 U.S. 865 (1979))).
Jackson, 879 F.2d at 88.
More recently this court in United States v. Bond, 847
F.2d 1233 (7th Cir. 1988), reiterated our holding in Mar-
kowski that a jury did not have to unanimously agree on
the identities of the required “five or more other persons”
for a CCE conviction. This court in Bond observed that
“the jurors must find unanimously that there were five,
but demanding agreement on which five could produce un-
justified acquittals.” 847 F.2d at 1237. Likewise, in United
States v. Markowski, 772 F.2d 358, we observed that “(t]he
statute does not make the identity of the five important,
however. The CCE statute is directed against all enter-
prises of a certain size; the identity of those involved is
irrelevant.” Id. at 364. By analogy the same logic should
apply with respect to predicate acts.
Indeed, Congress in passing the CCE was interested in
thwarting the multiplied hazards resulting from the exis-
tence of large-scale (therefore highly organized and there-
fore effective) drug conspiracies. But the statute also strong-
ly emphasizes its disapproval for “‘continuing”’ and endur-
ing operations that happen to be of a large scale. It seems
clear from the statute that the point of the CCE is to
impose special punishment on those who organize and di-
rect a “continuing” drug distribution system, the nature
of which is evidenced by proof of the defendant’s commis-
sion of a threshold number of criminal drug violations—a
“continuing series.” Therefore, for the reasons that a
unanimously agreed-upon identification of the “five or
more” controlled persons is not required in dealing with
Congress’ concern about large-scale enterprises, juror
unanimity should not be required in identifying the predi-
cate acts in enforcing Congress’ concern about “continu-
ing” drug enterprises. A “continuing series’’ identifies a
drug enterprise which is effective and persistent—qualities
which, according to Congress, warrant the enhanced pun-
ishment provided by the CCE statute. Consistent with
Nos. 89-1719, 89-1721, 89-1740 & 89-1746 33
the reasoning in Bond, Markowski, and Jackson, we hold
that once each juror finds beyond a reasonable doubt that
a CCE defendant committed at least two predicate of-
fenses the purpose of the CCE is satisfied, and the defen-
dant is suited for punishment consistent with the statute.
We do not require that the jurors unanimously agree as
to the same predicate acts; this we feel will result in un-
justified acquittals frustrating the important policy goals
of the CCE.’ The point of the CCE statute is to impose
special punishment on those who organize and direct a
significant number of larger-scale drug transactions; the
exact specification by unanimous jury consent of any par-
ticular three of a greater number of offenses is irrelevant
to any theory about why punishment should be enhanced
for such uniquely antisocial activity. Moreover, we decline
to adopt a chaotic rule which requires the jury to make
a unanimous finding with respect to some factual issues
(predicate acts) and be relieved of such a requirement in
7 Juror unanimity seems functionally incongruous with the pur-
poses of the CCE. For example, suppose the evidence shows that
the accused was involved in four conspiratorial drug transactions
constituting the “continuing series of violations” alleged in the in-
dictment. Half the jurors believe that the defendant involved him-
self in offenses 1 through 3 beyond a reasonable doubt, and offense
4 more likely than not; the other half of the jury finds beyond
a reascnable doubt that the defendant involved himself with of.
fenses 2 through 4, and more likely than not in offense 1. If the
jurors (being instructed that three predicate acts are necessary)
were required to agree on which three predicate acts constituted
the “continuing series” the defendant would be ac uitted, despite
the fact that everyone believed beyond a reasonable doubt that
he was involved in three criminal acts. This result is at odds with
the purpose of the CCE which is interested in punishing a defen-
dant whom the j is convinced was involved in a related series
of drug activity with relevant frequency. It is the defendant’s dem-
onstrated uency in participating in conspiratorial drug offenses
that is areee of the CCE offense, rather than any particulariza-
tion of the acts used to demonstrate “continuous.” A conviction
under the CCE is justified when the jury has a unanimously agreed
sense that the defendant exhibited such conspirational frequency
rather than a shared sense of what those acts may have been.
34 Nos. 89-1719, 89-1721, 89-1740 & 89-1746
relation to findings of other factual issues (‘five or more
other persons’’) in order to convict a defendant of a Con-
tinuing Criminal Enterprise. We believe that the interests
of justice are better served with a holding and reasoning
regarding evidentiary findings in CCE cases correspond-
ing to those announced in Markowski and Bond. The con-
stitutional requirement of juror unanimity in federal crim-
inal offenses is satisfied when each juror in a CCE triai
is convinced beyond a reasonable doubt that a defendant
charged under the CCE statute committed two predicate
offenses.
D. Concurrent Sentences for Conviction of Continuing
Criminal Enterprise and Conspiracy
Canino’s last argument is that his Fifth Amendment
rights have been violated because he was convicted and
sentenced for both a Continuing Criminal Enterprise and
a conspiracy. The Fifth Amendment double jeopardy clause
protects defendants from being tried and punished for the
same offense twice. Canino claims that the conspiracy
charge of which he was convicted is a lesser included of-
fense of a CCE charge and therefore constitutes the same
offense for Fifth Amendment purposes.* The Seventh Cir-
cuit rejected this argument in United States v. Bond,
supra. In Bond, this court held that a court may impose
a concurrent sentence for a § 846 conspiracy and a § 848
CCE conviction:
The point .. . is that one can both conspire (agree
to run a drug business) and run a continuing criminal
enterprise (strike the agreement and succeed); the
conspiracy ... is a lesser included offense. . . . The
two statutes reach the same group of persons. It is
not illogical to convict a person of both agreeing to
8 Canino was sentenced to twenty-six (26) years imprisonment on
each of the two Counts. The sentence in Count 2 was to run con-
currently with Count 1. In addition, Canino was ordered to pay
a special assessment of $100 ($50 per count).
Nos. 89-1719, 89-1721, 89-1740 & 89-1746 30
do something (§ 846) and succeeding on a grand scale
(§ 848).
Id. at 1233.
The court went on to hold that “§ 846 and § 848 do not
create identical offenses,” id. at 1239, and “that concur-
rent sentences may be imposed under § 846 and § 848
- . .. provided the cumulative punishment does not ex-
ceed the maximum under the CCE Act.” Jd. See also Jef-
fers v. United States, 482 U.S. 137 at 157-158 (1977);
United States v. Pace, 898 F.2d 1218, 1236-37, fn.6, (7th
Cir. 1990) (consecutive sentences for CCE and conspiracy
convictions were vacated and remanded for sentencing con-
sistent with Bond which allowed concurrent sentencing).
In this case Canino received 26 years imprisonment for
each offense. The CCE conviction is non-parolable. The
maximum allowable sentence for a CCE conviction is life
imprisonment. Thus, the defendant’s cumulative punish-
ment clearly does not exceed the maximum allowable un-
der the CCE conviction. If for any reason the CCE con-
viction is overturned as a result of a collateral attack, the
conspiracy conviction and sentence will remain. This is
also true for the special assessments. In Jeffers, it was
held that the $100,000 maximum fine allowed under the
CCE statute must be observed. Here the cumulative spe-
clal assessments are clearly within the bounds of the CCE
statute. Canino’s convictions and sentences are proper.
IV. Flynn’s Objections
Defendant John G. Flynn raises four issues on appeal
in hopes of reversing his conviction or reducing his sen-
tence. Flynn charges the district court erred by: (a) de-
nying Flynn’s request for a bill of particulars; (b) allow-
ing the prosecutor’s allegedly prejudicial cross-examination
of Flynn’s wife; (c) improperly sentencing him; and (d) ap-
plying an enhanced sentence in violation of the ex post
facto clause. The charges will be reviewed sequentially.
36 Nos. 89-1719, 89-1721, 89-1740 & 89-1746
A. The Bill of Particulars
Rule 7(f) of the Federal Rules of Criminal Procedure
allows, in conjunction with the issuance of an indictment,
for the filing of a bill of particulars—a more specific ex-
pression of the activities defendant is accused of having
engaged in which are illegal. The decision whether to re-
quire a bill of particulars is within the sound discretion
of the trial court, and that decision will not be overturned
without a showing of an abuse of discretion. United States
v. Serola, 767 F.2d 364 (7th Cir. 1985). The standard is
whether the government’s indictment sufficiently apprises
the defendant of the charges to enable him to prepare for
trial. United States v. Kendali, 665 F.2d 126, 134 (7th Cir.
1981), cert. denied, 455 U.S. 1021 (1982).
In United States v. Dempsey, 806 F.2d 766 (7th Cir.
1986), this court held that an indictment for conspiracy
under 21 U.S.C. §§ 841(a) and 846 need only allege the
conspiracy to distribute drugs, the time frame in which
it allegedly was operated, and the statute violated. No
specific overt acts need be alleged. Jd. at 769. Further-
more, a bill of particulars is not required when informa-
tion necessary for a defendant’s defense can be obtained
through “some other satisfactory form.” See Wright, Fed-
eral Practice and Procedure: Crim. 2d, § 129, pp. 436-38
(1982). The defendant needs to know what the government
intends to prove. /d.
The government maintained an “‘open-file” discovery pol-
icy which provided the defendants with complete and open
discovery of all evidence assembled and revealed in the
government’s investigation. The “‘open-file” policy, by court
order, permitted defense counsel, with proper notice, to
make inspection of all files and testimony in the govern-
ment’s possession. The nature and operations of the “‘open-
file’ policy is an adequate “‘satisfactory form” of informa-
tion retrieval, making the bill of particulars unnecessary.
Cf. United States v. Stephenson, 924 F.2d 753, 761-62 (8th
Cir. 1991); United States v. Kramer, 711 F.2d 789, 796
(7th Cir. 1983); United States v. Schembari, 484 F.2d 931,
0000 WU'NMCCSssc=S =
Nos. 89-1719, 89-1721, 89-1740 & 89-1746 37
935 (4th Cir. 1973); United States v. Kilroy, 523 F. Supp.
206, 211 (E.D. Wis. 1981). Since the defendant was suffi-
ciently aware of the charges against him, and of what he
Was going to have to defend himself against at trial, the
district court did not abuse its discretion in not ordering
a bill of particulars.
B. Cross-Examination of F lynn’s Wife
Flynn claims that his wife was improperly questioned
by the government on cross-examination about her hus-
band’s infrequent filing of tax returns. F lynn believes that
questioning on this topic, which was not discussed on di-
rect examination, is in violation of the rules of evidence
and resulted in juror prejudice.
Federal Rule of Evidence 611(b) governs the scope of
cross-examination. While the rule specifically limits cross-
examination to the subject matter of direct examination and
to matters affecting witness credibility, it also provides:
“{t]he court may, in the exercise of discretion, permit in-
quiry into additional matters as if on direct examination.”
The record shows that the government’s questioning and
emphasis on the peripheral tax issue was brief and incon-
clusive—Mrs. Flynn’s answer to the government’s question
concerning whether she was aware that her husband had
not filed tax returns since 1980 was that she was unaware
of her husband’s filing habits. The relative insignificance
of Mrs. Flynn’s answer and the government’s question
does not compel us to assign error in this regard. See
United States v. DeGeratto, 876 F.2d 576 (7th Cir. 1989)
(“{o}rdinarily error is found only when a prosecutor dwells
at great length and in further detail on the particulars
of prior crimes.” Jd. at 583),
C. Sentencing
Flynn raises four issues which he claims improperly led
to his receiving the “harshest sentence of any of the non-
cooperating defendants in the conspiracy{ J.” First, Flynn
38 Nos. 89-1719, 89-1721, 89-1740 & 89-1746
claims that he was given an inadequate amount of time
before sentencing to review the presentence report re-
quired by Fed. R. Crim. P. 32(cX3). Because he had no
time to make proper review and necessary objections to
the presentence report contributing to his sentence, Flynn
feels he must be resentenced.
Rule 32(cX3) of the Federal Rules of Criminal Procedure
provides that a defendant be given a reasonable time prior
to sentencing to review his presentence report. At his dis-
position hearing, the court asked Flynn’s counsel whether
he desired additional time to discuss and review the re-
port with his client. Counsel responded, “No, I don’t think
so. I think my client is satisfied.’’ We believe it is dis-
ingenuous of Flynn to now argue that he was prejudiced
by an inadequate opportunity to review the presentence
report after turning down an offer from the court for
more time.
Second, Flynn charges that the district court failed to
make written findings on the disputed matters that ap-
pear in.the presentence report. Federal Rule of Criminal
Procedure 32 provides that when the defenaant alleges
factual inaccuracies in the presentence report, “‘the court
shall as to each matter controverted, make (i) a finding
as to the allegations or (ii) a determination that no such
finding is necessary because the matter controverted will
not be taken into account in sentencing. A written record
of such findings and determinations shall be appended to
and accompany any copy of the presentence investigation
report... .’’ Fed. R. Crim. P. 32(eX3XD). Rule 32(cX3XD)
serves a dual purpose. First, it protects a defendant’s due
process right to fair sentencing procedures, particularly
the right to be sentenced on the basis of accurate infor-
mation. United States v. Montoya, 891 F.2d 1273, 1279
(7th Cir. 1989). The second purpose of Rule 32(cX3XD) is
to provide a clear record of the disposition and resolution
of controverted facts in the presentence report. Montoya,
891 F.2d at 1279; United States v. Perez, 858 F.2d 1272,
1276 (7th Cir. 1988). In United States v. Eschweiler, 782
eA
Nos. 89-1719, 89-1721, 89-1740 & 89-1746 39
F.2d 1385, 1389 (7th Cir. 1986), we held that resentencing
is required if the defendant proves a violation of Fed. R.
Crim. P. 32(eX3D) by showing that (1) allegations of the
presentence report's inaccuracy were before the court. and
(2) the court failed to make findings regarding the contro-
verted matters or a determination that the disputed in-
formation would not be used in sentencing.
Flynn did challenge a few factual aspects of the presen-
tence investigation report. F lynn maintained that he was
not in New Orleans for the conspiracy’s 1985 import of
marijuana, and he contested the quantity of drugs associ-
ated in past convictions (unrelated to the tried conspiracy).
The district court made oral findings with respect to each
objection that it would accept the prosecutor’s version of
the presentence report as prepared unless further cor-
roborating testimony for Flynn was available. In United
States v. Slaughter, 900 F.2d 1119 (7th Cir. 1990), this
court held that even if a judge’s oral rulings did not meet
the requirements of Rule 32, “this error would be harm-
less” where the defendant fails to prove that the sentenc-
ing hearing failed to serve the purposes underlying Fed.
R. Crim. P. 32. Id. at 1123; see United States v. Montoya,
891 F.2d 1278, 1279-81 (7th Cir. 1989). In Slaughter, the
district court made oral, on-the-record determinations con-
cerning most (not all) of the defendant’s objections to facts
in the presentence report. Any difference between the
judge’s actual methodology and Rule 32 requirements was
deemed harmless in that case where the defendant could
not prove that his sentence was based on erroneous in-
formation. In this case, the district court ruled on all of
Flynn’s objections, orally and for the record. The court
was wisely reluctant to depart from the presentence re-
port without credible corroboration of Flynn’s suggested
factual scenarios. The purposes of Rule 32 have been satis-
fied. We have a record from which the propriety of Flynn’s
sentence can be analyzed and a sentence based on evidence
which has not been sufficiently impeached. Any error in the
court’s failure to make written findings regarding Flynn’s
objections is harmless.
40 Nos. 89-1719, 89-1721, 89-1740 & 89-1746
Third and fourth, Flynn claims that the judge improper-
ly relied on uncounselled juvenile adjudications when im-
posing sentence, and that he improperly relied on evidence
he heard in other related trials over which he presided.
Both these contentions have little factual support.
At Flynn’s disposition, the prosecutor diminished the
relevance of Flynn’s youthful crimes and focused on his
history of adult drug convictions. In addition, the fact that
a judge has presided over a prior or collateral trial (in
this case Kramer’s) has been held non-prejudicial. See Car-
dillo v. Zyla, 486 F.2d 473, 475 n.1 (1st Cir. 1973). Flynn
only speculates that the judge could have used informa-
tion from another trial, and has not provided any facts
to show that the judge relied on any improper evidence
at sentencing. Therefore, we find no error.
D. Flynn and Marcum Sentences and the Ex Post Facto
Clause®
Flynn and Marcum claim that the ex post facto clause
requires proof that the defendant personally committed
conspiratorial acts after the effective date of an amend-
ment increasing the minimum sentence for violations of
21 U.S.C. §§ 841 and 846.19
On October 27, 1986, penalty enhancement provisions
for 21 U.S.C. §§ 841, 846, and 848 violations went into
effect. Flynn and Marcum claim that they should not be
sentenced at the enhanced levels because their personal
involvement in the conspiracy stopped before the penalty
enhancement became effective, even though the conspiracy
continued beyond that date.
® This is the only issue defendant Marcum raises on appeal.
10 “‘A law that increases the punishment for a crime committed
before the law was passed violates the [ex post facto] clause [of
the Constitution, Art. I, §9].’’ Miller v. Florida, 482 U.S. 423, 429
(1987).
|
Nos. 89-1719, 89-1721, 89-1740 & 89-1746 41
In United States v. Pace, 898 F.2d 1218 (7th Cir. 1990),
this court did not condition the application of enhancement
penalty provisions to a particular conspirator upon evi-
dence of personal involvement of the particular conspir-
ator—but instead conditioned the application of such a
penalty upon a showing that the conspiracy endured be-
yond the effective date of the new penalty. Citing United
States v. Todd, 735 F.2d 146, 150-51 (Sth Cir. 1984), we
said in Pace, “a statute increasing the penalty for con-
Spiracy does not violate the er post facto clause [of the
Constitution] when applied to a conspiracy begun before
the increase that continued on after the increase.”’ Pace,
898 F.2d at 1238. The government need not prove the
defendant’s involvement after the effective date of the
enhanced penalty provision. The government must only
prove that the defendant was involved in the conspiracy
and that the conspiracy continued past that date. The bur-
den of proving withdrawal is on the defendant. United
States v. Patel, 879 F.2d 292. 294 (7th Cir. 1989). For
withdrawal to limit a conspirator’s liability,
mere cessation of activity is not enough . . .; there
must also be affirmative action, either the making of
a clean breast to the authorities, or communication
of the abandonment in a manner calculated to reach
co-conspirators. And the burden of withdrawal lies
on the defendant. United States v. Borelli, 336 F.2d
376, 388 (2d Cir. 1964) (Friendly, J.) (citation omitted),
Patel, 879 F.2d at 294.
Flynn and Marcum did not try to overcome either of
these conditions. The government proved the existence
of the conspiracy beyond 1986 and the defendants did not
prove that they made themselves completely unavailable
for the conspiracy’s purposes during that time.
¥e
For the reasons stated above, we affirm the defendants’
convictions and sentences.
AFFIRMED.
42 Nos. 89-1719, 89-1721, 89-1740 & 89-1746
A true Copy:
Teste:
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA AOT7TXXXC-92-001—Midwest Law Printing Co., Inc., Chicago—11-27-91
APPENDIX C
In The
UNITED STATES COURT OF APPEALS
For the Seventh Circuit
Chicago, Illinois 60604
December 9, 1991
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. JESSE ESCHBACH, Senior Circuit Judge
UNITED STATES OF AMERICA
Plaintiff-Appellee
Nos. 89-1719, 89-1721
89-1740 and 89-1746 Ws
MICHAEL JOHN CANINO,
JAMES GILBERT MARCUM,
JOHN G. FLYNN, and
DAVID LEONARD MALKIN
Defendants-Appellants.
Appeals from the United States District
Court for the Southern District of
Illinois, Benton Division.
No. 87 CR 40045
James L. Foreman
Chief Judge
IT IS ORDERED that the opinion of
this court issued on November 27, 1991 in
the above-entitled case be corrected as
follows:
The footnote on page one should read:
* This opinion has_ been circulated
among the judges of this court in regular
active service pursuant to Circuit Rule
40(f). A majority did not favor a
rehearing en banc on the question of a
possible conflict with the Third Circuit’s
decision in United States v. Echeverri,
854 F.2d 638 (3d Cir. 1988). Judge Cudahy
voted to rehear the case en banc.
APPENDIX D
In The
UNITED STATES COURT OF APPEALS
For the Seventh Circuit
Chicago, Illinois 60604
January 14, 1992
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. JESSE ESCHBACH, Senior Circuit Judge
UNITED STATES OF AMERICA
Plaintiff-Appellee
Nos. 89-1719, 89-1721
89-1740 and 89-1746 Vv.
MICHAEL JOHN CANINO,
JAMES GILBERT MARCUM,
JOHN G. FLYNN, and
DAVID LEONARD MALKIN
Defendants-Appellants.
Appeals from the United States District
Court for the Southern District of
Illinois, Benton Division.
No. 87 CR 40045
James L. Foreman
Chief Judge
On consideration of the petitions for
rehearing and suggestions for rehearing en
banc filed in the above-entitled cause by
defendants-Appellants, tenes Gilbert
Marcum aid John G. Flynn, no judge in
active service has requested a_ vote
thereon, and all of the judges on the
Original panel have voted to deny a
rehearing. Accordingly
IT IS ORDERED that the aforesaid
petition for rehearing be, and the same is
hereby, DENIED.
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