Petition for Writ of Certiorari — Fischer v. United States
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Court, U.S.
FILED
JUL 13 1992
OFFICE OF THE CLERK
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1992
No.
BENJAMIN BARRY KRAMER and
RANDY THOMAS LANIER
Petitioners,
Vv.
UNITED STATES OF AMERICA,
Respondent.
JOINT PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
JOINT PETITION FOR WRIT OF CERTIORARI
ALBERT J. KRIEGER ROBERT W. RITCHIE
Counsel of Record for Counsel of Record
Petitioner Kramer for Petitioner
SUSAN W. VAN DUSEN Lanier
KENNETH J. KUKEC DAVID M. ELDRIDGE
1899 S. Bayshore Dr. 606 W. Main Ave.
Miami, FL 33133 Knoxville, TN 37902
(305) 854-0050 (615) 637-0661
QUESTION PRESENTED
Whether the petitioners' convictions
and mandatory life sentences without parole
under 21 U.S.C. Section 848(b) for acting
as principal administrators, organizers, or
leaders of a “continuing criminal
enterprise" consisting of a series of
violations of the narcotics laws violate
the constitutional prohibition on ex post
facto law where the instructions given to
the trial jury did not require the jury to
find that after the effective date of 21
U.S.C. Section 848(b), October 27, 1986,
the petitioners acted as the ape ee
administrators, organizers, or leaders over
a continuing series of violations of the
narcotics laws.
ii
LIST OF ALL PARTIES TO THE PROCEEDINGS
The following is a list of all parties
to the proceeding in the United States
Court of Appeals for the Seventh Circuit,
whose judgment is sought to be reviewed in
this case:
The United States Government
Benjamin Barry Kramer
Randy Thomas Lanier
Eugene Albert Fischer
Kay Dee Bell, Jr."
* Pursuant to Supreme Court 12.4, the
petitioners notify the Clerk of Court that
they believe that appellant below Kay Dee
Bell, Jr., has no interest in the outcome
of this petition. Mr. Bell was not charged
with a violation of 21 U.S.C. § 848(b).
iii
TABLE OF CONTENTS
QUESTION PRESENTED .....ccccccccccccces
LIST OF ALL PARTIES TO
THE PROCEEDINGS BELOW ..... ecccccccce
TABLE OF CONTENTS ...ccccccccccccccceces
OPINION BELOW .......... re
SUPREME COURT JURISDICTION ............
LAWS INVOLVED ....cccccccccccccccccccce
STATEMENT OF THE CASE ...cccceccccccces
REASONS FOR GRANTING THE WRIT .........
CERTIORARI SHOULD BE GRANTED BECAUSE
THE SEVENTH CIRCUIT'S AFFRIMANCE
OF THE PETITIONERS' CONVICTIONS,
WHICH WERE BASED UPON PETITIONERS'
CONDUCT PRE-DATING THE ENACTMENT
OF 21 U.S.C. SECTION 848(b) IN
VIOLATION OF THE EX POST FACTO CLAUSE,
CONFLICTS IN PRINCIPLE WITH THE
DECISIONS OF THIS COURT, CONFLICTS
DIRECTLY WITH THE DECISION OF THE
SECOND CIRCUIT COURT OF APPEALS
IN UNITED STATES V. TORRES, 901
F.2D 205 (2D CIR. 1990), AND
PRESENTS SUBSTANTIAL, UNRESOLVED
ISSUES OF FEDERAL CONSTITUTIONAL
LAW eeeevevevevevee7e7ee2e27028280282 8 eoeeeneeveeee ee eee
re
iv
A. General Principles Regarding
Ex Post Facto Law Derived
From This Court's
Jurisprudence ......ceeeeeccces 12
B. Statutory Analysis ............ 16
C. The Trial Court's Jury
ERBCEUGCAORE cccdsssceccsccccecs 20
D. The Analytical Defects in
the Seventh Circuit's
Affirmance of Petitioners'
COVERAGE cc ceeanaacesecuersce 23
E. The Conflict with the Decision
of the Second Circuit Court
of Appeals in United States
v. Torres, 901 F.2d 205
C2 Sab Bee) saw eeaenceseses 31
F. The Importance of the
Constitutional Issue
PRO 8 oe Oh HC tees eee eess 39
CONCLUSION ...ccccccccccccccs ee 42
APPENDIX
Judgment and Opinion of the
United States Court of Appeals for
the Seventh Circuit,
PEGE Be BUCO cetecivvscceaves la
Government's Suggested Jury
Instruction No. 20 ........... 62a
Requested Jury Instruction 1 . 77a
Requested Jury Instruction 3 . 83a
Requested Jury Instruction 13 . 87a
Superseding Indictment ....... 89a
vi
TABLE OF AUTHORITIES
PAGE
I. CASES:
Beazell v. Ohio,
269 U.S. 167 (1925) ..-----ee- ven aD
Bouie v. Columbia,
378 U.S. 347 (1964) ...---eeeeeee 16
Calder v. Bull,
1 U.S. (3 Dall.) 386 (1798) ..... 23, 14,
39
Collins v. Youngblood,
497 U.S. , 110 S.Ct. 2715
CADSR) ao cccnesecssesessevesessses 33, 19,
40
Cummings v. Missouri,
4 Wall 277, (1867) ....---eeeeees 14
Dobbert v. Florida,
432 U.S. 282 (1977) ~-cccccccecece 40
Fletcher v. Peck,
6 Cranch 137 (1810) ....cccccccee 14
Kring v. Missouri,
107 U.S. 221 (1883) ......------- 12
Lindsey v. Washington,
301 U.S. 397 (1937) .~..cceecccces 19
Miller v. Florida,
482 U.S. 423 (1987) .~.cccccccccee 3G, Bae
vii
Sedima, S.P.R.L. v. Imrex Co.,
473 U.S. 479 (1988) ccccccccceces 27
United States v. Baker,
905 F.2d 1100
(7th Cir. 1990),
cert denied, 111 S.Ct.
206 (1990) ccccccccccscccccccccecs 26, 27
United States v. Baresh,
790 F.2d 392
(Sth Cif. 1986) oc ccccececcvccsns 40
United States v. Fernandez,
822 F.2d 382
(3d Cir. 1987),
cert denied, 484 U.S.
963 (19B7) cccccccccccccccccccscs 26
United States v. Hall,
843 F.2d 408
(10th Cir. 1988) .......--ee- aka ee
United States v. Harris,
959 F.2d 246
(D.C. Cir. 1992) ccccecees ea
United “(ates v. Hernandez-Escarsega,
886 F.2d 1560
(9th Cir. 1989),
cert denied, 110 S.Ct.
3237 (1990) ..-ceeeeeees sceeeeees 26
United States v. Johnson,
537 F.2d 1170 '
(4th Cir. 1976) ...... Pe Se 40
United States v. Kramer,
955 F.2d 479 (7th Cir. 1992) .... Passim
viii
United States v. Middleton,
673 F.2d 31
(lst Cir. 1982) ...---- eee eeeeees 27
nat lia ak Ord * Sa
United States v. Pace,
898 F.2d 1218
(7th Cir. 1990),
cert denied, 110 S.Ct.
3286 (1990) ... ccc cece eee ccccces 40
United States v. Ricks,
802 F.2d 731
(4th Cir. 1986),
cert denied, 479 U.S.
1009 (1986) .cccccccccccccccccces 27
United States v. Rosenthal,
793 F.2d 1214
(llth Cir. 1986),
cert denied, 480 U.S.
OLD CASS) cenccscccssccevceseses 27
United States v. Schuster,
769 F.2d 337
(6th Cir. 1985),
cert denied, 475 U.S.
1021 (1966) .ccccccsessecs ore r eT me
United States v. Torres,
901 F.2d 205 (2d Cir. 1990),
cert denied, 111 S.Ct.
BTS CASH cb ho swab ses co csccsevcss Passim
United States v. Turkette,
452 U.S. 576 (1981) ..ccccccecece 25
United States v. Young,
745 F.2d 733
(2d Cir. 1984),
cert denied, 470 U.S.
1084 (1985) .cccccccccccccescccscs 27
Weaver v. Graham,
450 U.S. 24 (1981)
ix
Il.
18 U.
18 U.
21 U.
21 U.
21 U.
21 U.
28 U.
Itt.
U.S.
STATUTES :
S.C. § 1291 ...cceeeeees
S.C. § 3231 ..cccccceees
S.C. § B48 ....ccceevees
S.C. § 848(b) ........- °
S.C. § 841(b)(1)(B) ....
S.C. § B48(d) .......-..-
S.C. § 1254(1) ......2--
OTHER AUTHORITIES:
Const., Art. 1 ....--+6--
7
Passim
Passim
a
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1992
No.
BENJAMIN BARRY KRAMER and
RANDY THOMAS LANIER,
Petitioners,
Vv.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SEVENTH CIRCUIT
Petitioners Benjamin Barry Kramer
and Randy Thomas Lanier respectfully pray
that a writ of certiorari issue to review
the judgment and opinion of the United
States ‘Court of Appeals for the Seventh
Circuit entered in this proceeding on
January 30, 1992.
OPINION BELOW
The opinion of the United States
Court of Appeals for the Seventh Circuit is
reported at 955 F.2d 479 and is reproduced
in the appendix. (App. at la - 59a). :
SUPREME COURT JURISDICTION
The petitioners' convictions were
affirmed by the United States Court of
Appeals for the Seventh Circuit on January
30, 1992. Petitioners timely filed
petitions for rehearing and suggestions for
rehearing en banc which were denied on April
14, 1992. (App. at 60a - 6la).
This Court has jurisdiction to
review the decision of the United States
Court of Appeals for the Seventh Circuit
under 28 U.S.C. § 1254(1).
LAWS INVOLVED IN THIS CASE
Article One of the United States
Constitution, Section 9, Clause 3 provides:
"No Bill of Attainder or ex post facto law
shall be passed."
The version of 21 U.S.C. Section 848
applicable in this case’ provided:
Continuing Criminal Enterprise
(Penalties; forfeitures]
(a) Any person who engages in a
continuing criminal enterprise shall be
sentenced to a term of imprisonment which
may not be less than 10 years and which may
be up to life imprisonment, to a fine not to
exceed the greater of that unauthorized in
accordance with the provisions of Title 18,
or $2,000,000 if the defendant is an
individual or $5,000,000 if the defendant is
other than an individual, and to the
forfeiture prescribed in Section 853 of this
title; except that if any person engages in
such activity after one or more prior
convictions of him under this section have
become final, he shall be sentenced to a
term of imprisonment which may not be less
than 20 years and which may be up to life
1 fhe version of 21 U.S.C. Section 848
applicable to this case became effective on
October 27, 1986. Section 848 was amended
by the Anti-Drug Abuse Act of 1988, but
those amendments do not apply to this case.
3
imprisonment, to a fine not to exceed the
greater of twice the amount authorized in
accordance with the provisions of Title 18
or 64,000,000 if the defendant is an
individual or $10,000,000 if the defendant
is other than an individual, and to the
forfeiture prescribed in Section 853 of this
title.
Conditions for life imprisonmeat
for engaging in continuing
criminal enterprise
(b) Any person who engages in a
continuing criminal enterprise shall be
imprisoned for life and fined in accordance
with Subsection (a) of this section, if --
(1) such person is the principal
administrator, organizer, or leader of the
enterprise or is one of several such
principal administrators, organizers, or
leaders;..and
(2)(A) the violation referred to
in subsection (d)(1) of this section
involved at least 300 times the quantity of
a substance described in subsection
841(b)(1)(B) of this title, or
(B) the enterprise, or any other
enterprise in which the defendant was the
principal or one of several principal
administrators, organizers, or leaders,
received $10 million dollars in gross
receipts during any twelve month period of
its existence for the manufacture,
importation, or distribution of a substance
described in 841(b)(1)(B) of this title.
Continuing Criminal Enterprise Defined
(ad)? For purposes of subsection
(a) of this section, a person is engaged in
a continuing criminal enterprise if --
(1) he violates any provision of
this subchapter or subchapter II of this
chapter the punishment for which is a
felony, and
(2) such violation is a part of a
continuing series of violations 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
supervisory position, or any other position
of management, and
(B) from which such person obtains
substantial income or resources.
2 «Codification. Amendment of this
section by section 1253 of Pub.L. 99-570,
directing the redesignation of subsecs. (b)
and (c) as (d) and (e), respectively, and
the addition of a new subsec. (b), resulted
in section not containing a subsec. (c). In
1988, Congress again revised Section 848;
former subsection (d) is now subsection (c).
21 U.S.C. § 848 (West. 1988).
5
br
Suspension of sentence and probation
prohibited
(e) In the case of any sentence
imposed under this section, imposition or ,
execution of such sentence shall not be
suspended, probation shall not be granted,
and the Act of July 15, 1932 (D.C.Code secs.
24-203 to 24-207) shall not apply until its
recent revision in November of 1988.
eT a ng en
STATEMENT OF THE CASE
Petitioners Benjamin Barry Kramer
and Randy Thomas Lanier were prosecuted and
convicted of participating as principal
administrators, organizers or leaders of a
“continuing criminal enterprise" (CCE) in
violation of 21 U.S.C. Section 848(b).*’ That
statute became effective on October 27,
1986. The Count of the indictment charging
this violation, Count I, alleged that the
petitioners had acted as the principal
administrators, organizers or leaders of the
continuing criminal enterprise “from in or
about March 1980, and continuing thereafter
up to and including February 1987." (App.
at 89a) Pursuant to the mandatory
sentencing provision of Section 648(b), the
> The district court had jurisdiction
over this federal criminal case pursuant to
18 U.S.C. Section 3231; the Seventh Circuit
Court of Appeals had jurisdiction over
petitioners' direct appeal under 28 U.S.C.
Section 1291.
petitioners were each sentenced to a term of
life imprisonment without possibility of
parole.
The evidence presented by the
government at trial related to seven
transactions, occurring between April 1982
and February 1987, involving the importation
and distribution of large amounts of
marijuana. Only one of the transactions --
the so-called “San Francisco ioad" of
November 12, 1986 -- occurred after October
27, 1986, the effective date of the statute
under which the petitioners were convicted.
United States v. Kramer, 955 F.2d 479, 482-
83 (7th Cir. 1992).
At trial, the petitioners
submitted proposed jury instructions on
Count I that would have required the jury,
in order to convict on that count, to have
found that after October 27, 1986, the
effective date of 21 U.S.C. Section 848(b),
a defendant functioned as a principal
administrator, organizer, or leader of a4
continuing series of narcotics violations
and engaged in a continuing series of
narcotics violations. (App. at 77a-88a).
The district court refused to give these
instructions and instead gave the
instructions proffered by the government.
(62a-76a). Under those instructions, the-
jury was first directed to determine
whether, during the time period alleged by
Count I, a defendant had engaged in 6
continuing series of felony violations of
the narcotics laws as described in 21 U.S.C.
Section 848(d). Next, the district court
instructed the jury that it had to find two
additional elements to convict under 21
U.S.C. Section 848(b):
First, that a defendant was the
principal administrator, organizer, or
leader of the continuing criminal enterprise
or was one of several such principal
administrators, organizers, or leaders of a
continuing criminal enterprise that
9
continued after the effective date of the
statute, October 27, 1986;
Second, that after October 27,
1986, a defendant committed a violation of
importing marihuana, distributing marihuana
or conspiracy [sic] to distribute marihuana
as charged which involved at least 30,000
kilograms (66,000 pounds) of marihuana; or
that the enterprise in which a defendant was
a principal or one of several principal
administrators, organizers, or leaders
received §10 million in gross receipts
between October 27, 1986, and including
February 1987, for the importation or
Gistribution of marihuana.
United States v. Kramer, 955 F.2d at 484
(emphasis deleted and added). See also,
(App. at 7la-72a).
Based on these instructions, the
jury returned a verdict of guilty on Count
I of the indictment. On appeal, the Seventh
Circuit Court of Appeals affirmed, rejecting
the petitioners' argument that the district
court's instruction applied 21 U.S.C.
Section 848(b) to the petitioners in a
manner that violated the constitutional
prohibition on ex post facto law. For the
reasons that follow, the petitioners
10
respectfully request that this Court issue
a writ of certiorari to the Seventh Circuit
Court of Appeals to review that decision.
11
REASONS FOR GRANTING THE WRIT
CERTIORARI SHOULD BE GRANTED BECAUSE THE
SEVENTH CIRCUIT'S AFF IRMANCE OF THE
PETITIONERS’ CONVICTIONS, WHICH WERE BASED
UPON PETITIONERS' CONDUCT PRE-DATING THE
ENACTMENT OF 21 U.S.C. SECTION 848(b) IN
VIOLATION OF THE EX POST FACTO CLAUSE,
CONFLICTS IN PRINCIPLE WITH THE DECISIONS OF
THIS COURT, CONFLICTS DIRECTLY WITH THE
DECISION OF THE SECOND CIRCUIT COURT OF
APPEALS IN UNITED STATES V. TORRES, 901 F.2d
205 (2d CIR. 1990), CERT DENIED, 111 S.CT.
273 (1990) AND PRESENTS SUBSTANTIAL,
UNRESOLVED ISSUES OF FEDERAL CONSTITUTIONAL
LAW.
A. General Principles Regarding
Ex Post Facto Law Derived
From This Court's Jurisprudence
Article I of the United States
Constitution provides that no "ex post facto
law shall be passed." U.S. Const. art. I,
section 9, cl. 3.‘ As early as the 18th
* The prohibition on ex post facto law
is repeated in Section 10 of Article I, this
time as a restraint on the legislative
powers of the states. As Justice Miller
noted for the Court in Kring v. Missouri,
107 U.S. 221, 227 (1883) (overruled on other
grounds in Collins v. Youngblood, 497 U.S.
, 110 S.Ct. 2715 (1990)), the repetition
of the ex post facto guarantee was meant to
signal the importance attached to it by
those who attended the Constitutional
Convention. Even before that convention,
12
century, this Court observed that the ex
post facto clause requires "some
explanation," since without explanation it
"is unintelligible, and means nothing."
Calder v. Bull, 3 Dall. (1 U.S.) 386, 390
(1798). Speaking for the Calder Court,
Justice Chase explained the different ways
in which the ex post facto guarantee could
be violated:
lst. Every law that makes an
action done before the passing of the law,
and which was innocent when done, criminal;
and punishes such action. 2d. Every iaw
that aggravates a crime, or makes it greater
than it was, when committed. 3d. Every law
that changes the punishment, and inflicts a
greater punishment, than the law annexed to
the crime, when committed. 4th. Every law
that alters the legal rules of evidence, and
receives less, or different testimony, than
the: law required at the time of the
commission of the offense, in order to
concern over ex post facto law occupied the
attention of the Constitution's framers, see
J. Madison, The Federalist Nos. 44 & 78 (J.
Cooke ed. 1961), and the antecedents of the
constitutional guarantee can be traced to
the common law of England, see 1 Blackstone,
Commentaries on the Laws of England 24
(1765).
13
convict the offender.
Calder v. Bull, 3 Dall. (1 U.S.) at 391; see
also Fletcher v. Peck, 6 Cranch 137, 138
(1810) (per Marshall, C.J.) ("An ex post
facto law is one which renders an act
punishable in a manner in which it was not
punishable beth it was committed." );
Cummings v. Missouri, 4 Wall 277, 325-26
(1867) ("By an ex post facto law is meant
one which imposes a punishment for an act
which is not punishable at the time it was
committed; or imposes additional punishment
to that then prescribed; or changes the
rules of evidence by which less or different
testimony is sufficient to convict than was
then required.").
Over the years, Justice Chase's
explanation has_ been distilled into a
formula containing two “critical elements"
for determining whether a law runs afoul of
the ex post facto guarantee: “it must be
14
retrospective, that is, it must apply to
events occurring before its enactment, and
it must disadvantage the offender affected
by it." Weaver v. Graham, 450 U.S. 24, 29
(1981) (footnotes omitted); accord Miller v.
Florida, 482 U.S. 423, 430 (1987). If one
overriding principle has survived over the
centuries from the original understanding of
the Constitution's’ framers through the
analysis of modern-day courts, it is this:
that "[l]legislatures may not retroactively
alter the definition of crimes or increase
the punishment for criminal acts." Collins
v. Youngblood, 497 U.S. ___, 110 S.Ct.
2715, (1990) (ebtion Beazell v. Ohio, 269
U.S. 167, 169-70 (1925)).
As the above precedents also make
clear, the ex post facto prohibition applies
not only to- penal laws that apply
retrospectively on their face, but also to
judicial interpretations of facially-valid
15
}
penal laws which apply a statute in a
retrospective manner. See also, e.g., Boule
v. Columbia, 378 U.S. 347 (1964).
B. Statutory Analysis
The version of 21 U.S.C. Section
848(b) that the petitioners were convicted
under was enacted as the "Continuing Drug
| Enterprise Act of 1986", part of the myriad
of new narcotics laws included in the "Anti-
Drug Abuse Act of 1986", which became law as
Pub. L. No. 99-570. Before its revision in
1986, 21 U.S.C. Section 848 set out a single
offense titled “continuing criminal
enterprise." Under that statute, a person
committed a “continuing criminal enterprise"
offense if:
(1) he violates any provision of this
subchapter or subchapter II of this chapter
the punishment for which is a felony, and
(2) such violation is part of a continuing ;
series of violations of this subchapter or )
subchapter Ii of this chapter --
16
(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 supervisory
position, or any other position of
management, and
(B) from which such person obtains
substantial income or resources.
21 U.S.C § 848(b) (West 1984). Subsection
(a) of that statute provided that a person
who engaged in such an offense could be
fined as well as imprisoned for a period of
not less than 10 years up to life.
The 1986 revision to Section 848
created a new category of offense in
subsection (b). That subsection provided
that a person shall be punished by life
imprisonment if the person was "the
principal administrator, organizer, or
leader" or “one of several such principal
administrators, organizers, or leaders" of
a continuing criminal enterprise offense and
the narcotics violations comprising the
continuing criminal enterprise offense
17
involved at least 300 times the felony
quantity of narcotics or resulted in gross
receipts within a 12-month period of 10
million dollars or more. 21 U.S.C. § 848(b)
(West 1987).
The 1986 version of Section 848
retained the former offense of "continuing
criminal enterprise" -- with the same 10
year to life imprisonment, but with
increased maximum fines -- 4s re-lettered
subsections (a), (d), and (e) of 21 U.S.C.
Section 848.° Thus, the 1986 version of
Section 848 distinguished between those
persons who occupy any position of
organizer, supervisor, or manager while
engaging in a continuing series of narcotics
offenses, and those persons who act as the
principal administrators, organizers, or
5 The 1986 version of Section 848 did
not contain a subsection (c). See Editorial
Notes to 21 U.S.C. Section 848 (West 1987).
18
leaders while engaged in such activity.
Only the latter are subject to mandatory
life imprisonment without parole.°
This new category of criminal
offender created by the 1986 version of
Section 848 -- the "principAdl" leader,
organizer, or leader (what some might call
the supervisors' supervisor or the kingpins'
kingpin) -- was unknown to the law prior to
October 27, 1986. Before that date, such
conduct was without independent § legal
significance; a person engaged in such
conduct was subject to punishment no more
harsh than was a_ lower-level organizer,
supervisor, or manager of a _ continuing
series of drug offefses.
6‘ The change from a discretionary
maximum sentence of life imprisonment to a
mandatory sentence of life imprisonment
would itself gives rise to ex post facto
concerns, without regard to the new elements
created by the 1986 version of Section
848(b). See Lindsey v. Washington, 301 U.S.
397, 401 (1937).
19
C. The Trial Court's Jury Instructions
As set forth above, the
instructions given by the district court
concerning Count I of the indictment
required that the jury find two additional
elements beyond a_ continuing series of
narcotics violations in order to return 4
guilty verdict. ‘Each of these additional
two elements in turn contained two prongs.
The first element could be
satisfied if the jury found both prongs in
the conjunctive -- that the defendant had
been a "principal administrator, organizer,
or leader" of a “criminal enterprise," and
that the "criminal enterprise" had
"continued after the effective date of the
statute, October 27, 1986." The second
element could be satisfied if the jury found
either prong in the disjunctive -- that the
defendant had committed one of the charged
narcotics violations after October 27, 1986,
20
or that "the enterprise" itself had received
10 million dollars in gross receipts after
that date.
Unlike the instruction proposed by
the petitioners, the instruction given by
the district court did not require the jury
to find that after October 27, 1986, the
defendant acted as a principal
administrator, organizer or leader over a
continuing series of drug offenses as is
required by 21 U.S.C. Section 848(b). The
court's instructions did not require that
the jury find that the defendant function as
a principal administrator, organizer, or
leader at \any time after October 27, 1986.
The court's instructions also did not
require that the jury find that the
defendant acted in that capacity over a
"continuing series" of drug offenses
occurring after October 27, 1986.
21
Indeed, the district court's
instructions did not require the jury to
find that the defendant acted as 4 principal
administrator, organizer, or leader over
even a single nercotics transaction after
the effective date of Section 848(b). To
the contrary, the district court's jury
instructions permitted the jury to return a
guilty verdict on Count I even if it found
that a defendant had neither acted as a
principal administrator, organizer, or
leader nor engaged in a single narcotics
transaction after October 27, 1986.
Under the district court's
instructions, the jury could have returned
its guilty verdicts if it found merely that
the defendant had acted as a principal
administrator, organizer, or leader at some
time before October 27, 1986, and that "the
enterprise" had continued past that date
without the defendant any longer functioning
22
a
in that role, so long as "the enterprise”
grossed $10 million after October 27, 1986.
D. The Analytical Defects in the
Seventh Circuit's Affirmance
of Petitioners’ Convictions
The Soviet Circuit affirmed the
petitioners' convictions on Count I of the
indictment based on its determination that
an 848(b) violation is a "continuing
offense" and that "the enterprise" in this
case continued "long after" the effective
date of the statute, October 27, 1986.
United States v. Kramer, 955 F.2d at 485.
According to the Seventh Circuit, "[i]t is
well settled that the ex post facto clause
is not applicable to offenses which began
before the effective date of a statute and
continue thereafter." Id. at 485. The
Seventh Circuit, however, did not explain
what it meant by the term "the enterprise"
or how such an "enterprise" continued past
October 27, 1986.
23
An "enterprise" is not an
essential element of an 848(b) offense; nor
is the term "enterprise" defined by that
statute. Instead, “continuing criminal
enterprise" is the descriptive name given to
the offense created by 21 U.S.C. Section
848. That offense occurs only if a person
engages in a "continuing series" of
violations of the federal narcotics laws.
The only section of statute in which the
term "the enterprise" is used is the section
re-written by Congress in 1986, Section
848(b). In that section, the term
"enterprise" is used merely as a short-hand
form for the "continuing series of
violations" element of a Section 848 offense
set out in 21 U.S.C. Section 848(d).’ Thus,
7 Unfortunately, as sometimes happens
when one session of Congress undertakes to
re-write a statute enacted by an earlier
session of Congress, the language used in
the re-written section lacks the precision
of the original. Thus, Section 848(b)
speaks of "the enterprise" receiving $10
24
unlike the federal RICO act, in which an
"enterprise" is not only an_ essential
element but an independently-defined entity
-- including a group of persons associated
in fact for an illegal purpose, see United
States v. Turkette, 452 U.S. 576, 583
(1981), -- the CCE statute's use of the term
"enterprise" is meant to describe the
relationship among offenses, not among
people.
Because the term "enterprise" has
no independent meaning beyond the
"continuing series of violations” of the
narcotics laws, an "“enterprise" can be
million or more in gross receipts. Since
the term “enterprise” in Section 848(b)
clearly refers to the continuing series of
offenses set out in Section 848(d), “the
enterprise" cannot logically have received
any receipts. Although aé_e series of
violations of the narcotics laws might
generate such receipts, only an entity of
some kind --.an individual, a group of
individuals, or some other type of entity -
- could actually receive the receipts thus
generated.
25
deemed to continue past a given date only if
a series of offenses occurs after that date.
In this case, the Seventh Circuit
reaffirmed its earlier holding that the
"continuing series" element of a Section 848
offense can be satisfied by two substantive
violations of the federal narcotics laws.
United States v. Kramer, 955 F.2d at 486
(following United States v. Baker, 905 F.2d
1100, 1104 (7th Cir. 1990), cert denied, 111
S.Ct. 206 (1990)). Even assuming the
accuracy of this holding,® the jury
® The Seventh Circuit's holding that the
"series" element of a CCE offense can be
satisfied by two narcotics felonies
(excluding conspiracy offenses), is in
conflict with every other federal court to
consider the issue, since those courts have
construed the "series" element to mean at
least three narcotics violations (although
most count conspiracy offenses toward that
total). See United States v. Harris, 959
r.28 266, 253 (8.C. Car. 1992) (per
curiam); United States v. Hernandez -
Escarsega, 886 F.2d 1560, 1571 (9th cir.
1989), cert denied, 110 S.Ct. 3237 (1990);
United States v. Hall, 843 F.2d 408, 411
(10th Cir. 1988); United States Vv.
Fernandez, 822 F.2d 382, 385 (3d Cir. 1987),
26
instruction given by the district court on
cert denied, 484 U.S. 963 (1987); United
States v. Ricks, 802 F.2d 731, 737 (4th Cir.
1986), cert denied, 479 U.S. 1009 (1986);
United States v. Rosenthal, 793 F.2d 1214,
1227 (11th Cir. 1986), cert derisd, 480 U.S.
919 (1987); United States v. Schuster, 769
F.2d 337, 345 (6th Cir. 1965), cert denied,
475 U.S. 1021 (1986); United States v.
Young, 745 F.2d 733, 751-52 (2d Cir. 1984)
cert denied, 470 U.S. 1084 (1985); United
States v. Middleton, 673 F.2d 31, 33 (1st
Cir. 1982). The Seventh Circuit's holding
in this regard raises the specter that a
person could be convicted of an 848(b)
offense, and thus sentenced to a mandatory
term of life imprisonment, based on a single
large-scale transaction involving both an
importation and distribution of marijuana.
The Baker court reached its conclusion that
the "series" element of a CCE offense could
be satisfied by just two narcotics felonies
by analogizing the "series" element to the
"pattern" element of RICO offense. United
States v. Baker, 905 F.2d at 1104. The RICO
statute, however, defines a "pattern" as
meaning at least two predicate crimes,
suggesting that two such predicates are not
sufficient in all cases. See Sedima,
S.P.R.L. v. Imrex Co., 473 U.S. 479, 496
n.14 (1985). The CCE statute contains no
similar limiting language. Nor does the
legislative history of the CCE statute
contain any limiting gloss on the "series"
element similar to the "continuity plus
relationship" gloss on the RICO "pattern"
element. See H.J. Inc. v. Northwestern Bell
Telephone Co., -- U.S. --, 109 S.Ct. 2893
(1989).
27
Count I of the indictment did not satisfy
the "series" requirement, since those
instructions did not require the jury to
find that at least cwo narcotics violations
constituting a "series" occurred after
October 27, 1986. Those instructions
required only that the jury find that one
such violation occurred after that date or
that "the enterprise" have received at least
10 million dollars in gross receipts. Thus,
the instructions did not require the jury to
find that the petitioners acted as principal
administrators, organizers, or leaders of a
continuing series of offenses after the
effective date of the statute that made such
conduct subject to greater punishment.
Moreover, the jury instruction
given by the district court did not require
the jury to find that a defendant functioned
as a "principal administrator, organizer, or
leader" after October 27, 1986. The
28
a
language of 21 U.S.C. Section 848 makes
plain that, to be held liable as a
"principal," a defendant must have
functioned in this role over a sufficient
number of narcotics violations to constitute
a "series."’ The plain language of the
district court's jury instructions permitted
the jury to find the petitioners guilty on
Count I if it found that they had at one
time functioned as “principals” and that the
"enterprise" continued past Section 848(b)'s
effective date, even if the petitioners did
not function as principals after that date.
® Section 848(b) punishes only those
persons who function as "the principal
administrators, organizers, or leaders of
the enterprise," meaning the "enterprise"
described in Section 848(d). That subsection
provides that a "continuing criminal
enterprise" is a series of narcotics
violations “which are undertaken by such
person in concert with five or more other
persons with respect to whom such a person
occupies a position of organizer, a
supervisory position, or any other position
of management[.]"
29
The jury was not required to find that the
petitioners acted as principals over even
the single narcotics violation that was
alleged to have occurrea stter October 27,
1986, the "San Francisco load" of November
1986. Put another way, the jury
instructions required the jury to find that
at least one of the na-scotics violations
over which a petitioner had acted as a
"principal" occurred »efore October 27,
1986, and permitted the jury to find that
all of the narcotics violations constituting
the series occurred before that date. Yet
prior to the effective date of Section
848(b), October 27, 1986, the role of
"principal administrator, organizer, or
leader" did not even exist.
By permitting the jury to rely on
the petitioners' pre-enactment conduct to
find that the petitioners had acted as the
“principal administrators, organizers, or
30
|
leaders" over ae series of narcotics
violations, the district court's
instructions changed the legal consequences
of the petitioners' pre-enactment conduct to
the petitioners' disadvantage -- precisely
what this Court's decisions interpreting the
ex post facto clause forbid. Miller v.
Florida, 482 U.S. at 430; eile y. Graham,
450 U.S. at 29. Thus, the Seventh Circuit's
affirmance of the petitioners' convictions
conflicts in principle with the decisions of
this Court.
E. The Conflict with the Decision of the
Second Circuit Court of Appeals in
United States v. Torres, 901 F.2d
205 (2d Cir. 1990)
The Seventh Circuit's decision in
this case also conflicts directly with the
decision of the only other court to consider
the ex post facto implications of 21 U.S.C.
Section 848(b), the Second Circuit Court of
Appeals in United States v. Torres, 901 F.2d
31
205 (3d Cir. 1990).
In Torres, the indictment charged
that the Torres brothers had been the
principal administrators, organizers, or
leaders of a continuing criminal enterprise
in violation of 21 U.S.C. Section 848(b)
which had operated in the New York area from
the early 1980's until June 1987. united
States v. Torres, 901 F.2d at 213, 214. At
trial, the government established that the
defendants had engaged in at least three
narcotics violations occurring after the
effective date of Section 848(b). Id. at
229.
The district court in forres
instructed the jury that it could find the
defendants guilty under Section 848(b) if,
in addition to this series of narcotics
violations, it found that the defendants had
"acted as principal administrators,
organizers or leaders of the Organization at
32
any time between June 24, 1986, and June 23,
1987." Id. at 227 (emphasis deleted). The
jury returned a guilty verdict on the
Section 848(b) count. The Torres court
vacated the convictions, finding that the
defendants' rights under the ex post facto
clause had been violated because the jury
had not been required to find that the
defendants had functioned as the principal
administrators, organizers, or leaders after
October 27, 1986. Id. at 229; see also id.
eat 224, 227.
The district court's jury
instructions in this case suffered from the
very save constitutional defect identified
in To -- those instructions did not
veuaka he jury to find that the
petitio had functioned as "principal
administiuivrs, organizers, or leaders"
after the effective date of Section 848(b),
October 27, 1986. As demonstrated above,
33
BEST AVAILABLE COPY
the district court's instructions in this
case permitted the jury to find the
defendants guilty on Count I based on a
finding that the petitioners had functioned
as "principals" before October 27, 1986.
Indeed, unlike the instructions given in
Torres, the district court's instructions in
this case did not even require the jury to
find that a "series" of drug offenses had
occurred after the effective date of Section
848(b).
In this case, the Seventh Circuit
attempted to paper over the direct conflict
with the Second Circuit in Torres.’° The
10 The court below also found itself in
disagreement with the Torres court's finding
that Section 848(b) is a new substantive
offense rather than a sentencing-enhancement
provision. Compare United States v. Torres,
901 F.2d at 240 (". . .[{S]Jince section
848(b) requires the jury to find, beyond a
reasonable doubt, elements in addition to
those stated in section 848(a), section
848(b) resulted in a new offense rather than
sentence enhancement.") with United States
v. Kramer, 955 F.2d at 484 ("We do not
believe that Section 848(b) is a substantive
34
Seventh Circuit's attempt to reconcile the
cases is contained in a single paragraph of
its opinion:
offense.") and id. at 848 n.4 ("Section
848(b) appears to us to be a sentencing
enhancement provision"). The Seventh
Circuit decided that it need not reach that
issue, however, since Section 848(b) is a
"continuing offense." United States v.
Kramer, 955 F.2d at 484-85. Nevertheless,
the question whether Section 848(b) is a new
substantive offense is crucial to the issue
raised below concerning whether venue had
properly been established in the Southern
District. of Illinois. In its original
opinion in this case, the Seventh Circuit
found that venue was appropriate in this
case, even though the government failed to
prove any post-effective date conduct by any
of the petitioners in that district, because
Section 848(b) was merely a_ sentencing-
enhancement provision. (See App. at )
After the petitioners pointed out this
inconsistency to the court in their petition
for rehearing, the Seventh Circuit amended
its opinion to state that venue was
appropriate because Section 848(b) is a
"continuing offense." See United States v.
Kramer, 955 F.2d at 486. The Seventh
Circuit did not, however, cite any new
authority for this proposition, and none of
the authorities cited stand for the
proposition that venue for a "continuing
offense" can be established solely by proof
of a defendant's conduct that pre-dates the
effective date of the statute under which
the defendant was convicted.
35
Torres, in which Section 848(b)
convictions were found to violate the ex
post facto clause, is not to the contrary.
The instructions in Torres allowed the jury
to apply Section 848(b) if they [sic] found
that the appellants were principal
administrators, organizers, or leaders of
the organization "sometime during the 12-
month period from June 24, 1986 to June 23,
1987." 901 F.2d at 226. The second circuit
held that the instruction violated the ex
post facto clause, Id. at 227, because the
jury was_ not required to find that the
appellants engaged in a continuing offense.
The court further held that there could not
have been a continuing offense because the
jury wat not instructed that the appellants
had to function a principal administrators,
organizers, or leaders of the Torres
organization after Section 848(b) became
effective. See Id. By contrast, the
district court's instruction in this case
required the jury to find that the appellant
had been the principal administrators,
organizers, or leaders of the criminal
enterprise that had continued after October
27, 1986, the effective date of Section
848(b). Thus, the instruction required the
jury to find that the appellants continued
to violate Section 848 after the penalty for
violating that statute was increased. The
appellants, unlike the defendants in Torres,
cannot complain that the jury might have
found that they stopped acting as principal
administrators after Section 848(b) became
effective.
United States v. Kramer, 955 F.2d at 485-86
(footnote deleted) (emphasis deleted and
36
Le
added ).
This discussion ignores that it
was the petitioners' precise complaint that
the jury was not instructec that it had to
find that the petitioners acted as the
"principals" after the effective date of
Section 848(b). It also ignores that the
Torres court accepted that Section 848(b) is
a continuing offense. See, United States v.
Torres, 901 F.2d at 226. The Torres court
found an ex post facto violation despite
this recognition, because the jury in that
case was not instructed that the defendants
had functioned as "principals" after the
effective date.
In just the same way, the district
court instructions in this case did not
require the jury to find that the
petitioners had acted as "principals" after
Section 848(b) took effect. Indeed, the
Seventh Circuit's opinion in this case
37
mirrors the opinion of the district court
that the Second Circuit reversed in Torres.
Compare United States v. Kramer, 955 F.2d at
485 (". . . [A]ppellants' ex post facto
objections to their convictions must fail
because they engaged in a_ continuing
offense.") and id. ("The instruction given
by the district court required that the jury
find that the appellants engaged in a CCE
until after the effective date of Section
848(b).") with United States v. Torres, 683
F. Supp. 56, 62 (S.D.N.Y. 1988) ("Since the
indictment alleges the continuation of a
criminal enterprise beyond the effective
date of Section 848(b), the Court denies
[the defendants'] motion [to dismiss.]"),
rev'd, 901 F.2d at 229.
Consequently, the petitioners
respectfully request that this Honorable
Court issue a writ of certiorari to the
Seventh Circuit Court of Appeals to resolve
38
this direct conflict on the issue whether 21
U.S.C. Section 848(b) requires proof that a
defendant functioned as a "principal
administrator, organizer, or leader" over a
series of narcotics violations after the
statute's effective date, October 27, 1986.
F. The Importance of the Constitutional
Issue Presented
Despite Justice Chase's admonition
back in 1798 that the ex post facto clause -
- because its iiteral translation means
simply that no law shculd be passed after
some fact -- requires "some explanation,"
Caiger Vv. Buii, 2 Oeil. (1 U.B.) et 3G,
this Court has not often expounded on the
meaning to be attached to this clause of the
Constitution. This Court's precedents, for
example, do not explain whether, when
Congress passes a new penal statute, every
essential element of that new statute must
be satisfied by proof of conduct post-dating
39
the statute, or whether, as the court below
appears to have assumed, proof of a single
essential element after the effective date
of the statute will suffice.’ Nor has this
Court addressed whether some different test
should be applied where the new statute
creates a "continuing" offense. See United
States v. Baresh, 790 F.2d 392, 404 (5th
Cir. 1986) (addressing enhanced penalties
for conspiracy offense); United States v.
Pace, 898 F.2d 1218, 1238 (7th Cir. 1990),
cert denied 110 S.Ct. 3286 (1990)
(addressing 1988 revision of 21 U.S.C.
Section 848); United States v. Johnson, 537
11 This Court's recent ex post facto
cases do not address substantive offenses,
focusing instead on procedural issues, see
Collins v. Youngblood, 497 U.S. -- (1990),
110 S.Ct. 2715 sentencing guidelines, see
Miller v. Florida, 482 U.S. 423 (1987),
sentencing “gain time," Weaver v. Graham,
450 uU.S. 24 (1981), parole guidelines,
Portley v. Grossman, 444 U.s. 1311 (1980),
and sentencing procedures, see Dobbert v.
Florida, 432 U.S. 282 (1977).
40
F.2d 1170, 1175 (4th Cir. 1976) (addressing
original version of 21 U.S.C. Section 848).
In addition, this Court's
decisions do not explain whether, when
Congress amends an existing statute, the ex
post facto clause requires that any new
element created by the amendment must be
established by evidence of a defendant's
post-effective date conduct -- as_ the
petitioners argued below, and as seems to be
the logical extension of this Court's
decisions. See, e.g., Weaver v. Graham, 450
U.S. at 29. Furthermore, none of this
Court's precedents address directly the
argument presented by the petitioners to the
court below that the ex post facto clause
requires that venue for a new statutory
offense be established by evidence of some
act within the district after the effective
date of the new statute.
Although the likelihood that these
41
acai ite
precise issues will arise with respect to
the version of 21 U.S.C. Section 848 at
issue here decreases in direct proportion
with the lapse of time since that version
was enacted, identical issues are likely to
arise with frequency as Congress goes about
its task of enacting new penal statutes and
of amending the existing federal criminal
laws. Consequently, the petitioners
respectfully request that this Court grant
the writ to address’ the substantial,
unresolved issues of constitutional law
presented by this petition.
CONCLUSION
The jury that returned the
petitioners' convictions under 21 U.S.C.
Section 848(b) was instructed that it could
rely on evidence of the petitioners' pre-
effective date conduct to find the essential
elements of an 848(b) offense. The Seventh
Circuit affirmed the petitioners'
42
convictions, rejecting the petitioners'
argument that their convictions violated the
constitutional prohibition on ex post facto
law. That decision by the Seventh Circuit
conflicts in principle with the decisions of
this Court and is in direct conflict with
the decision of the Second Circuit Court of
Appeals in United States v. Torres, 901 F.2d
205 (2d Cir. 1990). In addition, this case
presents substantial, unresolved issues of
constitutional law.
Consequently, the petitioners
respectfully request that this Honorable
Court issue a writ of certiorari to the
Seventh Circuit Court of Appeals to review
that court's decision in this case.
43
Respectfully submitted,
ALBERT J. KRIEGER, P.A.
ALBERT J. KRIEGER
Counsel of Record for
Petitioner Kramer
SUSAN W. VAN DUSEN
KENNETH J. KUKEC
1899 South Bayshore Drive
Miami, FL 33133
(305) 854-0050
RITCHIE, FELS & DILLARD, P.C.
ROBERT W. RITCHIE
Counsel of Record for
Petitioner Lanier
DAVID M. ELDRIDGE
606 W. Main Avenue
Suite 300
Knoxville, TN 37902
(615) 637-0661
44
la
APPENDIX
IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
Nos. 88-3444, 88-3445, 88-3446,
89-1025 & 89-2752
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BENJAMIN BARRY KRAMER,
RANDY THOMAS LANIER,
EUGENE ALBERT FISCHER, and
KAY DEE BELL, JR.,
Defendants-Appellants.
Appeal from the United States District
Court for the Southern District of
Illinois.
(No. 87 CR 40070)
(April 20, 1990)
Before CUMMINGS, CUDAHY and KANNE, Circuit
Judges. KANNE, Circuit Judge:
Appellant Randy Thomas Lanier was a rising
star on the auto-racing circuit in the
2a
early 1980's; indeed, in 1985, he was the
rookie of the year at the Indianapolis 500.
Lanier apparently did not regard auto
racing as a full-time job. Together with
appellants Benjamin Barry Kramer, and
Eugene Albert Fischer, he directed a vast
enterprise which imported several hundred
thousand pounds of marijuana into the
United States in the 1980's. Appellant Kay
Dee Bell, Jr. assisted the enterprise in
importing two loads of marijuana.
A jury found Lanier, Kramer,
Fischer and Bell guilty to conspiring to
distribute marijuana in violation of 21
U.S.C. §§ 846 and 841(a(1). The jury also
found that Lanier, Kramer and Fischer had
participated as principal administrators,
organizers, or leaders of a continuing
criminal enterprise ("CCE") in violation of
21 U.S.C. § 848. Finally, the jury found
Lanier guilty of conspiring to defraud the
ee
3a
United States under 18 U.S.C. § 371 by
impeding the United States in its
assessment and collection of revenue.
As required by § 848(b), Lanier,
Kramer and Fischer were each sentenced to a
mandatory term of life imprisonment without
possibility of parole. Pursuant to §§ 846
and 841(a)(1), Lanier and Kramer were
sentenced concurrently to forty years
imprisonment, Fischer was sentenced
concurrently to thirty-five years
imprisonment, and Bell was sentenced to
twenty-five years imprisonment. Lanier was
also sentenced to serve five years for the
violation of § 371, to run consecutively to
his sentence under §§ 846 and 841(a)(1).
In addition, forfeiture judgments were
entered against Lanier and Kramer in the
amount of $60,000,000 each and against
Fischer in the amount of $30,000,000.
Appellants raise numerous challenges to
4a
their convictions. We find their arguments
unpersuasive and affirm in all respects.’
I.
In 1982, Lanier and Kramer formed a
partnership which purchased marijuana from
sources in Colombia and imported it to the
United States through several locations.
Kramer arranged to have marijuana brought
from Colombia to Florida on his boat, the
"Ursa Major," while Lanier provided the
initial financing for the purchase of the
marijuana and distributed it to his
customers upon arrival. The enterprise
established by Lanier and Kramer imported
two boatloads of marijuana on the "Ursa
Major" to Melbourne Beach, Florida from
Colombia.
The partnership's first
transaction took place in April, 1982 when
1 Lanier does not appeal his tax fraud
conviction pursuant to 18 U.S.C. § 371.
imac
5a
Lanier and Kramer arranged to bring 15,000
pounds of marijuana from Colombia to
Melbourne Beach, Florida. Kramer and
Lanier arranged for the load to be picked
up in Colombia, unloaded in Melbourne
Beach, and then distributed. Lanier
purchased boats to ferry the marijuana from
the "Ursa Major" to the beach where Kramer
coordinated the unloading of the marijuana
into waiting vans. A second load of 20,000
pounds of marijuana was imported in the
same manner in August, 1982. Some of the
marijuana from this load was purchased by a
co-conspirator, Conrad Ingold, and was
delivered by him to the Staunton, Illinois
area.
Fischer joined Lanier and Kramer
in orchestrating the next five
transactions, in which a tugload and four
barge loads of marijuana, were brought into
the United States. In the third
6a
transaction, which took place in the Spring
of 1983, Lanier, Kramer and Fischer
imported 30,000 pounds of marijuana into
Bridgeport, Connecticut and arranged its
distribution. In the Fall of 1983, they
brought a barge load of approximately
14,000 pounds of marijuana to New York.
Again, Lanier and Kramer set up its
importation and distribution. Some of the
marijuana from that load was transported to
the St. Louis area for distribution.
In the fifth transaction, which
took place in 1984, Lanier, Kramer and
Fischer brought a bargeload of 147,000
pounds of marijuana to San Francisco.
Bell, who owned Harbor Sand and Gravel
Yard, located in San Francisco, assisted
the enterprise in unloading the barge and
transporting its contents to customers.
Bell's tugboat brought the barge, upon its
arrival in San Francisco, to his Sand and
7a
Gravel Yard where it was unloaded. Bell
also helped Lanier and Kramer arrange the
transportation of the marijuana from the
Yard. Some of the marijuana imported in
the San Francisco load was delivered by
customers of Lanier and Kramer to
Millstadt, Illinois. Over $50 million was
received from the sale of that load of
marijuana.
The sixth transaction took place
in the Spring of 1985. Lanier, Kramer and
Fischer imported a bargeload of
approximately 152,000 pounds of marijuana
to New Orleans. Kramer was responsible for
the purchase of the marijuana in Colombia
while Fischer rented dock space in New
Orleans and arranged to bring the barge to
the dock. Lanier directed the unloading of
the barge. Customers of the enterprise
shipped some of the marijuana in that load
to Millstadt, Illinois.
ee
i.
8a
The seventh transaction occurred
in November 1986. The appellants imported
a bargeload of approximately 130,000 pounds
of marijuana to San Francisco. Kramer sent
an agent to Colombia to acquire the
marijuana. When the load arrived, Bell
arranged for the cover load of lumber to be
unloaded from the barge. Fischer provided
workers who removed the marijuana from the
secret compartments of the barge and placed
it in containers which were loaded onto
flatbed trailers at Bell's Sand and Gravel
yard. Bell also assisted Fischer in
loading the containers onto the flatbed
trailers. Lanier and Kramer were
principally responsible for transporting
the marijuana from the Sand and Gravel
yard. The enterprise collected $34,795,000
from this load. Kramer received
$12,500,000, while Fischer split
eee
9a
$10,253,000 with George Brock.* Lanier
received the balance of the proceeds.
II.
{1]) Lanier, Kramer and Fischer
raise two objections to their § 848
convictions based on the premise that §
848(b) is a substantive offense. They
argue that their § 848 convictions violated
the constitutional prohibition on ex post
facto laws.* They also argue that their
constitutional rights to be tried in the
district in which the § 848 offense was
7 George Brock (a/k/a "Tom") was
indicted with the appellants for engaging in
a CCE as ae principal administrator,
organizer, or leader but did not stand trial
because he remained a fugitive from justice.
> All citations to and quotations from
§ 848 hereinafter referred to that statute
as applicable here. Section 848 was
substantially amended by the Anti-Drug Abuse
Act of 1988, Pub. L. No. 100-690, 102 Stat.
4181, but those amendments are not pertinent
to this opinion.
10a
committed were violated. As we shall
explain, both of these objections fail.
First, we consider the
appellants' ex post facto objection to
their convictions, under § 848, for being
the principal administrators of a CCE.
Specifically, the appellants object to the
district court's instructions on certain
elements of § 848.
There are several elements
necessary for a conviction under § 848 and
other factors which require the application
of § 848(b). First, the government must
prove that the defendant engaged in a CCE.
See § 848(d). Under § 848(d) a person is
engaged in a CCE if:
(1) he violates any provision of
this subchapter or subchapter 11 of this
chapter the punishment for which is a
felony, and (2) such violation is a part of
the continuing series of violations of this
subchapter or subchapter 11 of this chapter
-- (A) which are undertaken by such person
in concert with five or more other persons
with respect to whom such persons occupies
a position of organizer, a supervisory
lla
position, or any other position of
management, and (B) from which such person
obtains substantial income or resources.
§ 848(d). Section 848(a) sets forth the
penalties for some of the persons who are
found to have engaged in a continuing
criminal enterprise under § 848(d).
Section 848(a) provides that "[a]ny person
who engages in a continuing criminal
enterprise shall be sentenced to a term of
imprisonment which may not be less than 10
years and which sisi be up to life
imprisonment ... ." Section 848(b),
which became effective on October 27, 1986,
is titled "Conditions for life imprisonment
for engaging in continuing criminal
enterprise." It provides for a mandatory
life sentence for a person engaging in a
CCE if:
(1) such person is the principal
administrator, organizer, or leader of the
enterprise or is one of several such
principal administrators, organizers, or
leaders; and (2)(A) the violation referred
to in subsection (d)(1) of this section
12a
involved at least 300 times the quantity of
a substance described in subsection
841(B)(1)(B) of this title, or (B) the
enterprise, or any other enterprise in
which the defendant was the principal or
one of several principal administrators,
organizers, or leaders, received $10
million in gross receipts during any twelve
month period of its existence for the
manufacture, importation or distribution of
a substance described in Section
841(b)(1)(B) of this title.
On the application of § 848(b)
the district court instructed the jury
that:
To sustain the charge of being-a
principal administrator, organizer, or
leader of a continuing criminal enterprise
as charged in Count I, the government must
prove, in addition to the fact that the
defendant was engaged in a continuing
criminal enterprise, the following
propositions:
First, that a defendant was the
principal administrator, organizer, or
leader of the continuing criminal
enterprise or was one of several such
principal administrators, organizers, or
leaders of a continuing criminal enterprise
that continued after the effective date of
the statute, October 27, 1986:
Second, that after October 27,
1986, a defendant committed a viclation of
importing marijuana, distributing marijuana
or conspiracy to distribute marijuana as
charged which involved at least 30,000
13a
kilograms (66,000 pounds) of marijuana[; ]
or that the enterprise in which a defendant
was a principal or one of several principal
administrators, organizers, or leaders
received $10 million in gross receipts
between October 27, 1986, and including
February 1987, for the importation or
distribution of marijuana.
The district court instructed the
jury on the continuing series element of §
848(d) 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 importing marijuana as set
forth in paragraphs A through R of Count I
of the Indictment and that this conduct,
together with any additional violations of
the 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 a defendant engaged in a continuing
series of violations.
Appellants contend on appeal that
§ 848(b) is a substantive offense, and is
not a sentencing enhancement provision.
The government disagrees. The appellants
14a
maintain that if we agree that § 848(b) is
a separate substantive offense, their
convictions violate the ex post facto
clause because the continuing series
instruction did not require the jury to
find that the appellants engaged in two
predicate acts after October 27, 1986, the
effective date of § 848(b). They argue
that the § 848(b) instruction was also
defective because it required the jury to
find only after § 848(b) became effective,
a defendant committed one violation of
importing, distributing, or conspiracy to
distribute marijuana or that the enterprise
received $10 million in gross receipts from
the importation or distribution of
marijuana between October 27, 1986, and
February, 1987.
The appellants principally rely
on United States v. Torres, 901 F.2d 205
(2d Cir.), cert denied, U.S.
’
——
15a
111 S.Ct. 273 (1990) for the proposition
that § 848(b) is a substantive offense, and
not a sentencing enhancement provision. We
do not believe that § 848(b) is a
substantive offense. See United States v.
Lowe, 860 F.2d 1370, 1377 (7th Cir. 1988),
cert denied, 490 U.S. 1005, 109 S.Ct. 1639
(1989), and McMillan v. Pennsylvania, 477
U.S. 79, 91, 106 S.Ct. 2411, 2419 (1986),
but we find that we do not need to reach
that issue.‘ Assuming, arguendo, that §
* Section 848(b) appears to us to be a
sentencing enhancement provision under the
analysis set forth in Lowe. 860 F.2d at
4377. The test set forth in Lowe was
designed to determine whether Congress
intended to create a separate offense or a
sentencing enhancement provision. First,
the title of § 848(b), "Conditions for Life
Imprisonment for Engaging in a Continuing
Criminal Enterprise," and the titles of the
preceding bills indicate that it is a
sentencing enhancement provision. Second,
§ 848(b) contains an explicit reference to
conviction under the predicate provision §
848(d). Third, the penalty contained in §
848(b), while not a multiplier of the
penalty for violating § 848(a), merely
limits the district court's discretion in
sentencing within the range set forth in §
16a
848(b) is a substantive offense, the
appellant's ex post facto objections to
their convictions must fail because they
engaged in a continuing offense.
848(a). Fourth, although § 848(b) does not
contain procedures for a separate hearing to
determine if the enhancement factors are
present, it resembles several other
sentencing enhancement statutes, including
21 U.S.C. § 841(b) and 18 U.S.C. § 2113,
which do not require a hearing. Indeed, we
have recently questioned the need to examine
statutes for hearing provisions. In Lowe,
we held that 18 U.S.C. § 924(e), which does
not contain a provision for 4a separate
hearing on the enhancement factors, is a
sentencing enhancement provision. Id. at
1378. See also, United States v. Acevedo,
891 F.2d 607, 611 (7th Cir. 1989) (§ 841(b)
is a sentencing enhancement provision). The
Sentencing Guidelines, which took effect on
November 1, 1987, clearly contemplate 3a
sentencing hearing under Rule 32 of the
Federal Rules of Criminal Procedure for all
convictions to determine whether enhancement
factors are present. Because of the
elaborate procedures established by the
Sentencing Guidelines for determining
enhancement’ factors, it is no longer
appropriate to examine recently enacted
statutes for a hearing requirement to
determine whether Congress intended to enact
a sentencing enhancement provision coupled
with a substantive offense.
17a
It is well settled that the ex
post facto clause is not applicable to
offenses which began before the effective
date of a statute and continue thereafter.
See United States v. Baresh, 790 F.2d 392,
404 (5th Cir. 1986) ("because conspiracy is
a continuing crime, a statute increasing
the penalty for a conspiracy beginning
before the date of enactment but continuing
afterwards does not offend the [ex post
facto clause]"); United States v. Ferrara,
458 F.2d 868, 874 (2d Cir.), cert denied,
408 U.S. 931, 92 S.Ct. 2498 (1972); United
States v. Pace, 898 F.2d 1218, 1238 (7th
Cir.), cert denied, ¥.8. .
¥.G.: #, 410 S.Ct. 3206, Lil S.Ct. 210
(1990); United States v. Canino, Nos. 89-
1719, 89-1721, 89-1740 & 89-1746, slip op.
at 40-41 (7th Cir. Nov. 27, 1991). The
appellants argue that a CCE can only become
a continuing offense if the government
18a
demonstrates that the defendant engaged in
a continuing series of violations after the
effective date of § 848(b).
We disagree. In Pace, we held
that a CCE, like a conspiracy, is 4
continuing offense. 898 F.2d at 1238. We
noted that a CCE and a conspiracy are
similar crimes because both punish
agreements to commit orines and both
involve continuing conduct. Id. See also
United States v. Johnson, 537 F.2d 1170,
1175 (4th Cir. 1976) (holding that the
original version of § 848 could be applied
to enterprises beginning before its
effective date, but which continued
thereafter). Pace requires that only the
government prove that the enterprise
continued until after October 27, 1986, the
effective date of § 848(b). Pace, 898 F.2d
at 1238. There is no requirement that the
government prove that the appellants
19a
engaged in two predicate acts after the
effective date of § 848(b). See id.:
Canino, slip op. at 41 (holding that the
government need not prove the defendant's
involvement in a conspiracy after the
effective date of an enhanced penalty
provision). The instruction given by the
district court required that the jury find
that the appellants engaged in a CCE until
after the effective date of § 848(b). The
evidence was sufficient to show that the
appellants engaged in a CCE from 1980 until
February 1987, long after the effective
date of § 848(b). Thus, we hold that the
appellants engaged in a continuing offense.
Torres, in which § 848(b)
convictions were found to violate the ex
post facto clause, is not to the contrary.
The instructions in Torres allowed the jury
to apply § 848(b) if they found that the
appellants were principal administrators,
20a
organizers, or leaders of the organization
"sometime during the 12 month period from
June 24, 1986 to June 23, 1987." 901 F.2d
at 226. The second circuit held that the
instruction violated the ex post facto
clause, id. at 227, because the jury was
not required to find that the appellants
engaged in a continuing offense. The court
further held that there could not have been
a continuing offense because the jury was
not instructed that the appellants had to
function as principal administrators,
organizers, or leaders of the Torres
organization after § 848(b) became
effective. See id. By contrast, the
district court's instruction in this case
required the jury to find that the
appellants had been the principal
administrators, organizers, or leaders of a
criminal enterprise that had continued
after October 27, 1986, the effective date
2la
of § 848(b). Thus, the instruction
required the jury to find that the
appellants continued to violate § 848 after
the penalty for violating that statute was
increased. The appellants, unlike the
defendants in Torres, cannot complain that
the jury might have found that they stopped
acting as principal administrators after §
848(b) became effective.°®
* The appellants argue in their reply
briefs that if § 848(b) was a substantive
offense it was plain error for the district
court to fail to instruct the jury that it
could find the appellants guilty of
violating § 848(a). The appellants' theory
is that if the jury was required to
determine whether the appellants met the
requirements for a life sentence under §
848(b), it should have been able to decide
that the appellants have violated only §
848(a). At the instruction conference, the
district court asked the appellants whether
they wanted the jury to be instructed that
it could find the appellants had violated
only § 848(a) in addition to the instruction
on § 848(b). Kramer and Lanier expressly
stated that they did not want a lesser
included offense instruction on § 848(a),
while Fischer remained silent. Therefore,
the appellants have waived this issue.
22a
The appellants also claim that
venue did not lie in the Southern District
of Illinois for the offense of violating §
848. See U.S. Const. amend VI; Fed. R.
Crim. P. 18. The appellants argue that
because none of the predicate acts occurred
in the Southern District of Illinois after
the effective date of § 848(b), they were
convicted in violation of their right to be
tried in a district in which their crimes
were committed. Because the appellants
engaged in a continuing offense,” venue may
be established by proof that any act in
furtherance of the CCE took place in the
Southern District of Illinois. See United
States v. Molt, 772 F.2d 366, 369-70 (7th
Cir. 1985), cert denied, 475 U.S. 1081, 106
* The Court's original opinion read: "Since
§ 848(b) is a_ sentencing enhancement
provision, . . ." The Court amended ,its
opinion in .its order denying appellants
petitions for rehearing and suggestions for
rehearing en banc. See (App. at 60a-61a).
23a
S.Ct. 1458 (1986); United States v. Lewis,
797 F.2d 358, 366-68 (7th Cir. 1986), cert
denied, 479 U.S. 1093, 107 S.Ct. 1308
(1986). At trial the government offered
testimony to show that the appellants
provided large quantities of marijuana to
their dealers in East St. Louis and
Southern Illinois areas. Indeed, the
appellants do not contest the adequacy of
this evidence on appeal. The evidence was
more than adequate to establish venue.
Ii.
Lanier, Kramer and Fischer raise
several other objections to their § 848
convictions. They first argue that the
district court's instructions erroneously
permitted the jury to rely upon the
conspiracy charge as one of the continuing
series of violations that § 848 requires
for conviction. In United States v. Baker,
905 F.2d 1100, 1104 (7th Cir. 1990), certs
lciliteiisliettisiiaiaaaaaile
24a
denied, U.S. : 8.
P U.S. , Bal B.6e. 2y6,
111 S.Ct. 270, 111 S.Ct. 686 (1990), we
held that a conspiracy may not be included
as one of the crimes making up the
continuing ‘series necessary for a CCE
conviction. We also held, however, that “a
series may be established by two or more
substantive drug offenses." Id. at 1104.
Baker obligates us to affirm the
convictions of the appellants because the
indictment alleged that each appellant was
involved in more than two substantive drug
offenses. The indictment charged Lanier
and Kramer with involvement in seven
substantive drug offenses, while Fischer
was charged with five substantive offenses.
These offenses were more than adequate to
meet the continuing series requirement of
the CCE charge.
25a
Lanier, Kramer, and Fischer
contend that the jury should have been
instructed that it must unanimously agree
as to each of the two or more predicate
offenses constituting the "continuing
series" element of the charge. Federal
Rule of Criminal Procedure 31. requires, and
the district court gave, a general
unanimity instruction. See Fed.R.Crim.Pro.
31. The appellants principally rely on
United States v. Echeverri, 854 F.2d 638,
642-43 (3d Cir. 1988), which held that, in
a § 848 case, the jury should be instructed
that it must unanimously agree on the acts
which constitute the continuing series of
violations. This Court has expressly
declined to follow Echeverri. In Canino,
slip op. at 34, we held that "[t]he
constitutional requirement of juror
unanimity in federal criminal offenses is
satisfied when each juror in a CCE trial is
26a
convinced beyond a reasonable doubt that a
defendant charged under the CCE statute
committed two predicate offenses." See
also United States v. Markowski, 772 F.2d
358, 364 (7th Cir. 1985), cert denied, 475
U.S. 1018, 106 S.Ct. 1202 (1986) (holding
that under § 848 the jury was not required
“to agree unanimously on the identity of at
least five people who acted under [a
defendant's] supervision"); United States
v. Bond, 847 F.2d 1233, 1237 (7th Cir.
1988). The general unanimity instruction
required the jury to find that the
appellants committed at least three
predicate acts. Thus, the appellants’
unanimity argument is unavailing.
Lanier, Kramer and Fischer argue
that the district court's instructions on
the CCE count constructively amended the
indictment. The court instructed the jury
that it could find that the appellants
27a
engaged in a continuing series of
violations based upon the various predicate
acts set forth in the indictment, "together
with any additional violations of the drug
laws" (emphasis added). The appellants
object to the italicized portion of the
instruction on the ground that it subjected
them to further controlled substance
violations beyond those which were charged
in the indictment. See Stirone v. United
States, 361 U.S. 212, 215-18, 80 S.Ct. 270,
272-74 (1960). The Supreme Court has long
held that every defendant has a
“substantial right to be tried only on
charges presented in an indictment returned
by a grand jury." United States v. Miller,
471 U.S. 130, 140, 105 S.Ct. 1811, 1817
(1985) (quoting Stirone, 361 U.S. at 217,
80 S.Ct. at 273). A constructive amendment
of an indictment occurs when the evidence
introduced by the prosecution broadens “the
28a
possible bases for conviction from that
which appeared in the indictment." Miller,
471 U.S. at 138, 105 S.Ct. at 1816. A
constructive amendment of the indictment
may also occur if the district court's
instructions to the jury broaden "the
possible bases for conviction." Id.;
united States v. Keller, 916 F.2d 628, 632-
36 (llth Cir. 1990), cert denied,
U.S. _—_—_—s 111: S.Ct. 1628 (1991). It is
well settled that "[a] judicial amendment
of the indictment, whether implicit or
explicit, is per se reversible error."
United States v. Galiffa, 734 F.2d 306, 311
(7th Cir. 1984); United States v. Kuna, 760
F.2d 813, 817 (7th Cir. 1985).
The appellants contend that the
trial court's instructions broadened the
possible bases for their CCE convictions by
including new predicate acts which were not
listed in the indictment. They contend
29a
that it is possible that the jury found the
appellants were principal leaders or
administrators of a CCE based on the new
predicate acts that were not alleged in the
indictment.
We disagree with the appellants'
contention that the trial court's
instruction broadened "the possible bases
tox conviction from that which appeared in
the indictment,” Miller, 471 U.S. at 138,
105 S.Ct. at 1816 (1985), because the
appellants misinterpret the requirements
for a conviction under § 848. Numerous
courts, including this one, have allowed
proof of overt acts in.violation of the
drug laws, although those acts were not
specified in the indictment, to sustain a §
848 charge. In United States v. Sperling,
506 F.2d 1323, 1344 (2d Cir. 1974), cert
denied, 420 U.S. 962, 95 S.Ct. 1351, 421
U.S. 949, 95 S.Ct. 1682 (1975), the court
30a
stated that an indictment charging a
violation of § 848 need not “specify each
violation constituting the continuing
series of violations proscribed by the
statute." See also, United States v.
Young, 745 F.2d 733, 747 (2d Cir. 1984),
cert denied, 470 U.S. 1084, 105 S.Ct. 1842
(1985) ("in order to support a § 848
charge, the government is not required to
plead in any form, much less obtain
convictions on, any of the eligible
predicate offenses, but may instead simply
prove at trial the continuing series of
offenses."); Baker, 905 F.2d at 1103
(same); Markowski, 772 F.2d 358, 361-62
(same); United States v. Alvarez- Morreno,
874 F.2d 1402, 1408 (llth Cir. 1989), cert
denied, _—s\U.S. __—_s_,:* 110 S.Ct. 1484
(1990); United States v. Sterling, 742 F.2d
521, 526 (9th Cir. 1984), cert denied, 471
u.S. 1099, 105 S.Ct. 2322 (1985);
3la
Echeverri, 854 F.2d at 642 n. 4; United
States v. Becton, 751 F.2d 250, 256 (8th
Cir. 1984), cert denied, 472 U.S. 1018, 105
S.Ct. 3480 (1985).
The appellants contend that
Young, Sperling and Baker are
distinguishable because those cases did not
involve an amendment of the indictment. We
disagree. If the government was not
required to allege any of the possible
predicate acts in the indictment, there can
be no error where it alleged all but a few
of the acts. Moreover, we note that the
appellants do not contend that they were in
fact unable to defend against the CCE
charge because they were not notified of
the predicate acts that the government
would seek to prove at trial. Thus, we do
not agree that the indictment was
constructively amended by the court's
instructions. See Canino, slip op. at 26
32a
{holding that there was no amendment of the
indictment where the jury was instructed
that it could rely on a predicate act not
mentioned in the indictment to find a
continuing series under § 848(d)).
Lanier, Kramer and Fischer argue
that punishment marijuana trafficking under
§ 848(b) with life imprisonment without
possibility of parole is cruel and unusual
punishment in violation of the eighth
amendment. A recent decision by the
Supreme Court, Harmelin v. Michigan,
u.S. _, 111 S.Ct. 2680 (1991), has
settled this issue definitively. In
Harmelin, the petitioner was convicted of
possessing 672 grams of cocaine and
sentenced to a mandatory term of life in
prison without possibility of parole. Id.
at 2654. The Supreme Court rejected the
petitioner's argument that the sentence was
cruel and unusual within the meaning of the
33a
eighth amendment. Id. at 2702. The
Supreme Court also rejected the .
petitioner's claims that his sentence was
disproportionate to the crime he committed
and that the sentence was void because the
court was required to impose it and could
not consider mitigating factors. The Court
stated that: "[w]le have drawn the line of
required individualized sentencing at
capital cases, and see no basis for
extending it further." Id. Thus, we find
meritless the appellants' claim that their
mandatory life sentences violate the eighth
amendment.
IV.
Lanier, Kramer, Fischer and Bell
argue that the trial court's instructions
to the jury after it began its
deliberations and indicated that it was
deadlocked improperly coerced the jury to
return a guilty verdict. The trial lasted
34a
fourteen weeks. After being instructed,
the jury began its first day of
deliberations at 3:00 p.m. and recessed at
10:05 p.m. On the second day of its
deliberations, the jury requested to hear
certain portions of the trial testimony.
Before the district court could respond to
this request, the foreman sent another note
stating that though the jury was "still
deliberating over the first defendant” it
was “at a point of deadlock." The court
then read the requested testimony to the
jurors. A later note from the jury asked
whether “defendants Lanier, Kramer and
Fischer [could] be convicted on the
original indictment of 848(a) only and not
on 848(b)." Before the jury retired, the
court instructed that the jurors “must
follow the instructions I have previously
given with regard to the superseding
indictment filed January 26, 1988, only.”
i
4
i
35a
On the third day of
deliberations, the jury sent a note to the
court which stated: ". . . Regarding
defendant Bell, Count 2, we're deadlocked
eleven to one. Regarding defendants Lanier
and Kramer, Count 1, we are deadlocked
eleven to one. Regarding defendant Fisher
[sic], Count 1, we have not taken a final
vote." <A short time later, the jury
informed the court that: “. . . We have
taken -- taken the final vote on Fisher
{sic}, Count 1. It is the same as the
others, deadlocked, eleven guilty, one not
guilty. If you wish further deliberations,
we respectfully request that it begin at 9
a.m. tomorrow. ...." The district court
responded to the note by directing that
deliberations would resume the next
morning.
On the fourth day of
deliberations, the jury announced that: ".
36a
‘ . we are still deadlocked on Count 1 for
defendants Lanier, Kramer and Fisher [sic].
Eleven guilty [and] one not guilty. Also,
on Defendant Bell, Count 2, eleven guilty
and one not guilty .. . . Any further
deliberations would be to no end... ."
The appellants then moved for a
mistrial. During the court's discussion of
the note with counsel, the foreman sent
another note requesting that the court give
him "two more hours." The district court
denied the motions for a mistrial and sent
a note to the jury which stated: "Continue
your deliberations. Judge Foreman."
In denying the motions for
mistrial the district court found that
although the jury had been in session over
the course of four days, it had spent as
little as nine hours over five days
actually deliberating. The cou:t noted
that the jurors often were required to wait
37a
while counsel for the government and the
appellants debated the proper responses to
the jury's notes.
Soon afterwards, the jury
responded with a note which stated: "Your
Honor, we are at a deadlock. Nothing has
changed. Thank you. ... ." Appellants
once again moved for 4 mistrial. The
district court denied the motions and
directed the jury to continue its
deliberations. The court found that the
jury had not deliberated for an adequate
time in relation to the length of the trial
for the court to grant a mistrial. On the
fifth day of deliberations, the jury
returned guilty verdicts against the
appellants on all counts.
The appellants maintain that the
trial judge's instruction to the jury to
"continue to deliberate" violated the rule
of United States v. Silvern, 484 F.2d 879,
38a
883 (7th Cir. 1973). The relevant inquiry,
under Silvern, however, is “whether 'the
court's communications pressured the jury
to surrender their honest opinions for the
mere purpose of returning a verdict.'"
United States v. Thibodeaux, 758 F.2d 199,
203 (7th Cir. 1985) (quoting United States
v. Hamann, 688 F.2d 507, 511 (7th Cir.
1982), cert denied, 460 U.S. 1013, 103
S.Ct. 1255 (1983)). On several occasions
this court has held that instructions to
continue to deliberate were neutral and not
coercive. In United States v. D'‘Antonio,
801 F.2d 979, 983-84 (7th Cir. 1986), we
said that an instruction to "continue to
deliberate" after the jury had declared
that it had reached in impasse is
"perfectly content neutral and carrie[s] no
plausible potential for coercing the ‘jury
to surrender their honest opinions for the
mere purpose of returning 4 verdict.'" Id.
39a
at 984 (quoting Thibodeaux, 758 F.2d at
203). Moreover, in Thibodeaux, the jury
notified the court that it had reached a
verdict on three counts but was deadlocked
on one count. The court instructed the
jury to continue deliberations for the time
being, but informed the jurors that it
would call them out later. See id. This
court found that the instruction was
"noncommittal" and not coercive. See
United States v. Splendorio, 830 F.2d 1382
(7th Cir. 1987), cert denied, 484 U.S.
1068, 108 S.Ct. 1034 (1988) (upholding an
instruction that differed from that of
Silvern where early in the deliberations
one juror stated that he believed the
evidence insufficient to convict any
defendant on any count).
The appellants claim that this
case is different from D‘Antonio and
Thibodeaux because the district court knew
40a
that there was one holdout juror when it
instructed the jury to continue its
deliberations. We are unable to see how
that makes any difference; the instruction
simply did not influence the jurors to find
the appellants guilty or not guilty.
Indeed, the holdout juror remained free to
persuade the other jurors to acquit the
appellants. See United States v. Warren,
594 F.2d 1046, 1049-50 (5th Cir. 1979)
(holding that the trial judge did not err
when he instructed the jury to continue its
deliberations even though he was aware of a
divided preliminary vote by the jurors);
United States v. Robinson, 560 F.2d 507,
516-18 (2d Cir. 1977), cert denied, 435
u.S. 905, 98 S.Ct. 1451 (1978). Thus, we
conclude that the trial judge's
instructions to the jury to “continue your
deliberations" were entirely proper and not
in error.
4la
The appellants further argue that
the district court erred when it twice
declined to declare a mistrial after the
jury announced that it was "deadlocked."
"The decision to grant a mistrial is within
the broad discretion of the trial judge and
is to be made in view of all the
circumstances of the case." United States
v. Allen, 797 F.2d 1395, 1400 (7th Cir.),
cert denied, 479 U.S. 856, 107 S.Ct. 196
(1986); D‘Antonio, 801 F.2d at 983. In
denying the motions for a mistrial the
district court found that the jury had
deliberated for a very short time, perhaps
as little as nine hours over four days, in
comparison to the length of the trial,
fourteen weeks, and that it was not
hopelessly deadlocked. See id. (finding
no abuse of discretion where the trial
court denied a motion for a mistrial and
instructed the jury to continue its
42a
deliberations where at reosenably believed
that the jury had not devoted adequate time
to its deliberations). The district
court's determination that the jury was not
hopelessly deadlocked after only four days
was certainly reasonable given the
extensive length of the trial and the
multiple defendants involved. There was no
abuse of discretion in the district court's
refusal to grant a mistrial.
V.
Fischer argues that the district
court erred under Federal Rule of Evidence
403 in admitting testimony by an informant,
C.M. Stewart, that Fischer imported 15 tons
of marijuana to the United States in 1981.
Fischer was not charged with any criminal
offense as a result of that activity. The
trial court overruled Fischer's objection
and concluded that the evidence was
admissible to show that Fischer intended to
43a
import marijuana on other occasions.
Fischer contends that the government
improperly introduced the evidence to show
that Fischer had a propensity for
committing drug offenses. Fischer also
argues that the admission of this testimony
was especially prejudicial to him because
of the danger that the jury would
erroneously consider the evidence in the
context of the continuing series
requirement of § 848.
To determine whether evidence of
other crimes, wrongs, or acts is admissible
under Rule 404(b) of the Federal Rules of
Evidence we follow the three part analysis
set forth in Huddleston v. United States,
485 U.S. 681, 108 S.Ct. 1496 (1988).
Jackson v. United States, 886 F.2d 838, 845
(7th Cir. 1989); United States v. Lennartz,
No. 90-1770, slip op. at 5-6 (7th Cir. Nov.
21, 1991). First, the district court must
a
44a
determine whether the evidence of other
crimes, wrongs, or acts "is probative of a
material issue other than character." Id.
We have found inadmissible evidence used to
show a defendant's bad character through a
mere propensity to commit other crimes.
Id; United States v. Shackleford, 738 F.2d
776, 779 (7th Cir. 1984). Second, the
district court must determine “whether the
evidence of other crimes, wrongs, or acts
is relevant under Rule 402 -- as enforced
through Rule 104(b)." Jackson, 886 F 2d at
846; Huddleston, 485 U.S. at 691, 1! bee
at 1501-02. The evidence is releva only
if "the jury can reasonably conclu hat
the act occurred and that the defe. | was
the actor." Huddleston, 485 U.S. 49,
108 S.Ct. at 1501; Jackson, 886 F.. t
846. Relevance, in part, depends on
whether the other crime, wrong, or act is
similar enough and close enough in time to
45a
a matter in issue. Shackleford, 738 F.2d
at 779.
We noted in Jackson that if the
evidence of other crimes, wrongs or acts is
"relevant and offered for a proper purpose
under 404(b), ‘the evidence is subject only
to general strictures limiting
admissibility such as .. . [Rule] 403.'"
Id. at 846-47 (quoting Huddleston, 485 U.S.
at 687, 108 S.Ct. at 1500). We held in
Jackson that the key factor in the Rule 403
balancing test "is plainly that relevant
evidence should only be excluded if its
probative value is substantially outweighed
by any of the listed concerns in Rule 403."
886 F.2d at 847; Shackleford, 738 F.2d at
77S; United States v. Manganellis, 864 F.2d
5928, 531-32 (7th Cir. 1988). “In reviewing
the admissibility of relevant, potentially
prejudicial evidence, we view the evidence
in the light most favorable to its
a aia
46a
proponent, maximizing its probative value
and minimizing the prejudicial effect."
United States v. Brown, 688 F.2d 1112, 1117
(7th CIr. 1982); United States v. Connelly,
874 F.2d 412, 415 (7th Cir. 1989).
In reviewing decisions to admit
evidence, the district court's
"[d]iscretion, when exercised, will rarely
be disturbed. . . ." United States v.
Beasley, 809 F.2d 1273, 1279 (7th Cir.
1987). We will reverse a trial court's
admission of evidence under 403 or 404(b)
""only upon a showing of abuse of
discretion.'" United States v. Chaimson,
760 F.2d 798, 808 (7th Cir. 1985) (quoting
Brown, 688 F.2d at 1117 (7th Cir. 1982);
United States v. Zapata, 871 F.2d 616, 621
(7th Cir. 1989); United States v. Liefer,
778 F.2d 1236, 1244 (7th Cir. 1985). We
note finally, that "[oJur role on review is
not to second-guess the results reached by
47a
the trial court in applying the Shackleford
standards." United States v. Hudson, 843
F.2d 1062, 1065 (7th Cir. 1988).
We believe that there was an
exercise of principled discretion by the
district court. The district court
admitted Stewart's testimony concerning
Fischer's shrimp boat shipment of marijuana
on the ground that it showed that Fischer
intended to conspire with the other
appellants to distribute more than 1,000
pounds of marijuana. See Liefer, 778 F.2d
at 1242-43 (the defendant's specific intent
to distribute was an essential element of
the crime of conspiracy to distribute more
than 1,000 pounds of marijuana). This
satisfied the first part of the Huddleston
analysis. Moreover, the district court did.
not abuse its discretion in concluding that
Fischer's 1981 importation of marijuana was
Similar enough to the activities for which
48a
he was on trial -- conspiracy to distribute
in excess of 1,000 pounds of marijuana --
and close enough in time -- 1981 as opposed
to 1983-87 -- to be relevant evidence. The
evidence was more than adequate to show
that Fischer directed the importation of
the 15 tons of marijuana on the shrimp
boat, thus satisfying the second part of
the Huddleston analysis. See 485 U.S. at
689, 108 S.Ct. at 1499. Third, the
district court did not abuse its discretion
in concluding that the prejudicial effect
of Stewart's testimony, if any, did not
substantially outweigh its probative value.
The district court did not abuse its
discretion in admitting Stewart's testimony
concerning Fischer's importation of 15 tons
of marijuana in 1981.
Bell contends that the district
court abused its discretion in denying
Bell's motion to admit in evidence certain
oo
49a
portions of the proffered testimony of
William Palumbo. Bell contends that the
government stipulated that Bell could
introduce Palumbo's testimony. Palumbo was
a front man for: the enterprise, who helped
reserve dock space in San Francisco and New
Orleans. Before trial, Palumbo, a co-
defendant of Lanier, Fischer, Kramer and
Bell, agreed to give a proffer of his
testimony to the government apparently
because he wanted to demonstrate to the
government that he would be a cooperative
witness. Davis, an FBI agent who took the
proffer from Palumbo, testified that
Palumbo "told me that Kay Bell was unaware
of any illegalities." At a pretrial
hearing on whether Palumbo's trial should
be severed from that of the other
defendants, counsel for the government
stated that "I'll stipulate that statement
that was made by Mr. Palumbo .. . in Mr.
50a
Bell's behalf can be introduced for Mr.
Bell." The government made the offer to
stipulate because it hoped to prevent the
severance of Palumbo's trial from that of
the other appellants. Counsel for Bell,
who had not previously participated in the
discussion, responded: "We wiil accept
that stipulation, Your Honor." The
district court stated "okay." The hearing
concluded without further discussion of the
stipulation. Shortly after the hearing,
Palumbo's motion for a separate trial was
granted.
During the trial, when Bell moved
for the admission of the stipulation, the
government opposed the admission of
Palumbo's testimony. Although the record
is not entirely clear, it appears that the
district court concluded that the
government had entered into a stipulation
with counsel for Bell. The district court,
renee
Sla
however, noted that the government's offer
to stipulate had been made with the
assumption that Palumbo was to be tried
with the other defendants. The district
court denied Bell's motion to require
enforcement of the government's stipulation
because Palumbo was no longer a co-
defendant.
We agree with the district court
that the government did initially stipulate
to the admission of the testimony of
Palumbo, which was helpful to Bell. Even
so we cannot find that the district court
abused its discretion when it declined to
enforce the stipulation. "As with other
matters of trial management, the district
court has ‘broad discretion' to ,ecide
whether to hold a party to its
stipulations; the district court's decision
will be overturned on appeal only where the
court has clearly and unmistakably abused
52a
its discretion." Graefenhain v. Pabst
Brewing Co., 870 F.2d 1198, 1206 (7th Cir.
1989); Cates v. Morgan Portable Bldg.
Corp., 780 F.2d 683, 690-91 (7th Cir.
1985). Here, the government stipulated
with the assumption that Palumbo would be
tried with the appellants. The
circumstances underlying the offer to
stipulate were altered when the cistrict
court granted tne motion to sever Palumbo's
trial. The district court acted within its
discretion to void the stipulation.
Bell also argues that the trial
court abused its discretion in not
enforcing the stipulation because the
stipulated testimony tended to exculpate
him by contradicting proof which tended to
show that Bell understood that the other
appellants were engaged in a conspiracy to
import marijuana. The government points
out in response that Palumbo's statement
53a
was not subject to cross-examination and
that the other evidence of Bell's guilt was
substantial. We agree and conclude that
the admission of the stipulation, while
possibly helpful to Bell, would not have
made a difference in the outcome of the
trial. Therefore, we conclude that the
district court did not abuse its discretion
in denying Bell's motion to enforce the
stipulation.
VI.
The other arguments raised by
appellants are without merit.
For the foregoing reasons, we
AFFIRM the convictions of Lanier, Kramer,
Fischer and Bell.
CUDAHY, Circuit Judge, concurring. I agree
that the law of this circuit supports the
affirmance of these convictions. I write
separately to discuss this circuit's law on
54a
an issue touched on only tangentially in
the opinion for the panel: the
admissibility of other crimes evidence on
the issue of intent when intent is not
disputed. Fischer's intent was apparently
in issue in this case, so I agree that
evidence of his 1981 marijuana importation
activities was admissible. However, since
the government has argued that Fischer's
intent was "necessary in issue" because
Fischer was charged with a specific intent
crime, Gov't Br. at 110, I think it
appropriate to express my concerns
regarding this circuit's rule on this
matter.
The general rule throughout the
circuits has been that in order for
evidence of other crimes to be admissible
to establish intent under Federal Rules of
Evidence 404(b), the issue of intent must
be disputed. See United States v. James,
55a
955 F.2d 992, 1000 n. 46 (D.C.Cir. 1977)
(citing cases from the Second, Third,
Fourth, Fifth, Sixth, Eighth and D.C.
Circuits); United States v. Fierson, 419
F.2d 1020, 1023 (7th Cir. 1969); Edward W.
Cleary, McCormick on Evidence § 190, at 564
(3d ed. 1984) ("[I]f£ the prosecution
maintains that the other crime reveals
defendant's guilty state of mind, then his
intent must be disputed."); 22 Charles Alan
Wright & Kenneth W. Graham, Jr., Federal
Practice and Procedure: Evidence 4,6
9242, at 489 (1978) ("The issue of intent
must be seriously disputed; for example, if
the defendant claims that he is not the
person identified as the actor, intent is
not an issue and the [Rule 404(b)]
exception cannot be invoked.").
This circuit has carved out an
exception to the general rule, holding that
where the crime includes specific intent as
56a
an element, other-crimes evidence is
admissible even though intent is not in
dispute (or, put another way, intent is
"automatically in issue."). United States
v. Monzon, 869 F.2d 338, 344 (7th Cir.),
cert denied, 490 U.S. 1075 (1989); United
States v. Liefer, 778 F.2d 1236, 1242-43
(7th Cir. 1985). The line of cases
applying this exception extends back to
United States v. Weidman, 572 F.2d 1199,
1202 (7th Cir.), cert denied, 439 U.S. 821
(1978). Other circuits generally have
declined to follow suit with such an
exception.’ Most courts make no
distinction between specific i: i and
general intent crimes, but sin: apply the
1 Some cases in the Eighth Ciicuit have also
held that intent need not be disputed by the
defendant in specific intent crime cases in
order for other crimes evidence to be
admissible. See United States v. Engleman,
648 F.2d 473, 478 (8th Cir. 1981); United
States v. Adcock, 558 F.2d 397, 402 (8th
Cir.), cert denied, 434 U.S. 921 (1977).
57a
general rule that intent must be in issue
for other crimes evidence to be admitted.’
As the Fifth Circuit has written: "If the
defendant's intent is not contested, then
the incremental probative value of the
extrinsic offense is inconsequential when
compared to its prejudice; therefore, in
this circumstance the evidence is uniformly
excluded." United States v. Beechum, 582
* The Fifth Circuit has expressly
rejected a distinction between specific
intent and general intent crimes’ as
"unhelpful in analyzing when such evidence
properly bears on intent." United States v.
Adderly, 529 F.2d 1178, 1180 (5th Cir.
1976).
Some courts have held that the
defendant bears the burden of affirmatively
removing the issue of intent form the case,
generally by stipulation or _ concession.
See, e.g. United States v. Manner, 887 F.2d
317, 322 & n.2 (D.C. Cir. 1989), cert
denied, 493 U.S. 1062 (1990); United States
v. Russo, 717 F.2d 545, 552 (11th Cir.
1983). In contrast to the approach of these
cases, the specific intent exception of this
circuit automatically precludes defendants
charged with specific intent crimes from
ever removing intent as an issue in the
case, even by stipulation.
58a
F.2d 898, 914 (5th Cir. 1978) (en banc),
cert denied, 440 U.S. 920 (1979) (emphasis
added; footnote omitted); see also, United
States v. Figueroa, 618 F.2d at 934, 940
(2d Cir. 1980).
In questioning the defensibility
of this circuit's rule, I wrote in United
States v. Chaimson, 760 F.2d 798, 813 (7th
Circ. 1985):
{T]he rule should not be so
understood as to make the admissibility of
other crimes evidence automatic where the
crime is one of specific intent. Even if
we adopt the fiction that intent is always
in question in such cases, such evidence is
only admissible if it is really introduced
to show intent. The government...
cannot simply flood the courtroom with
other crimes evidence on the grounds that
the crime was one of specific intent..
I am afraid that over the years
this circuit's bright line exception has
resulted in a great deal of prejudicial
extrinsic evidence finding its way into
many criminal trials. In my view, intent
ought to be an issue in dispute in order
59a
for evidence of other crimes to be
admissible for the purpose of establishing
intent; when intent is not contested,
evidence of other crimes is likely to be
used simply for the prohibited purpose of
showing criminal propensity. But the mere
fact that a crime includes specific intent
as an element does not make the issue of
intent disputed. Rather, our specific
intent exception has effectively swallowed
the rule providing that, as evidence of
intent, other crimes are not admissible
uniess intent is disputed or called into
question. I believe that we should return
to that fundamental rule.
A true Copy:
Teste:
Clerk of the United States
Court of Appeals for the
Seventh Circuit
60a
IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
Nos. 88-3444, 88-3445, 88-3446,
89-1025 & 89-2752
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
Vv.
BENJAMIN BARRY KRAMER, RANDY THOMAS
LANIER, EUGENE ALBERT FISCHER, and
KAY DEE BELL, JR.,
Defendants-Appellants.
Appeal from the United States District Court
for the Southern District of Illinois,
Benton Division
ON PETITION FOR REHEARING
(April 14, 1992)
Before FOREMAN, Chief Judge, and CUMMINGS,
CUDAHY, and KANNE, Circuit Judges.
The slip opinion issued in the
above-entitled cause on January 30, 1992,
is further amended as follows:
The first paragraph on page 11,
line 8, delete the words "Since § 848(b) is
6la
& sentencing enhancement provision, " and
replace them with "Because the appellants
engaged in a continuing offense,".
Further, on consideration of the
petitions for rehearing and suggestions for
rehearing en banc filed in the above-
entitled cause and of the answer thereto,
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
petitions for rehearing be, and the same
are hereby, DENIED.
62a
GOVERNMENT'S SUGGESTED JURY
INSTRUCTION NO. 20
Second Amended
To sustain the charge of being a
principal administrator, organizer, or
leader of a continuing criminal enterprise
as charged in Count I, you must first
determine whether or not 4 defendant is
engaged in a continuing criminal
enterprise.
To sustain the charge of engaging
in a continuing criminal enterprise, the
government must prove the following
propositions:
First, that the defendant
violated Title 21, United States Code,
Section 846 as charged in Count II
(conspiracy to distribute in excess of
1,000 pounds of marihuana, or committed
other violations of Title 21, United States
Code, Section 952 (importation of
marihuana) or Title 21, United States Code,
Section 841(a)(1) (distribution of
marihuana) as those offenses have been
defined for you; and
Second, that the commission of at
least one of those offenses occurred within
the statute of limitation, that is on or
after November 25, 1982, and was part of a,
63a
continuing series of violations of the
federal controlled substances act by the
defendant as hereafter defined; and
Third, that the defendant
undertook to commit such a series of
offenses in concert with five or more other
persons either named or unnamed in the
indictment; and
Fourth, that the defendant
occupied a position of organizer, a
supervisory position or other position of
management with respect to such five or
more other persons; and
Fifth, the defendant obtained
substantial income or resources from said
continuing series of such violations.
I will now discuss in more detail
and define for you the meaning of certain
terms used in the statute and in these
instructions relating to the five elements
of the so-called "continuing criminal
enterprise."
The first element of a continuing
criminal enterprise is the determination by
you beyond a reasonable doubt that a
defendant is guilty of the offense of
conspiracy to distribute in excess of 1,000
64a
pounds of marihuana as charged in Count II
according to the instructions I have given
you under that count, or is guilty of the
offenses of distribution of marihuana or
importation of marihuana as set forth in
paragraphs A through R of Count I of the
Indictment according to the instructions I
have previously given you concerning those
offenses. If you determine that a
defendant is guilty of any of these
offenses you must determine next the second
element of Count I, namely, whether the
violation or violations are a part of a
continuing series of violations of the
federal drug laws.
I charge you that the term
"series" generally means "three or more"
and that the term "continuing" means,
"enduring, subsisting for a definite period
or intended to cover or apply to
successive, similar occurrences.” Thus,
65a
you must find beyond a reasonable doubt
that a defendant committed three or more
successive violations of the federal drug
laws, over a definite period of time with a
single or substantially similar purpose.
Thus, you must find beyond a
reasonable doubt that the defendant is
guilty of conspiracy to distribute more
than 1,000 pounds of marihuana as charged
in Count II and/or that he is guilty of
knowingly and intentionally distributing
marihuana or importing marihuana as set
forth in paragraphs A through R of Count I
of the indictment and that this conduct,
together with any additional violations of
the 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
66a
that a defendant engaged in a continuing
series of violations.
The third requirement is that a
defendant committed those violations in
concert with five or more persons. It is
not required that the five or more persons
be engaged with a defendant in the
commission of the continuing series of
violations at the same moment or that all
five were present at the same time or that
all five were present at the same place.
It is not required that a defendant acted
in concert with five or more persons in the
commission of any single offense that is
one of the series of offenses constituting
the continuing criminal enterprise. For
purposes of this element, it is sufficient
if it is proven that during the course of
the commission of the continuing series of
violations, a defendant supervised, managed
67a
or organized a total of five or more
persons.
The fourth requirement is that
you find beyond a reasonable doubt that a
defendant occupied a position of organizer,
a supervisory position or other position of
management with respect to such five or
more other persons. An organizer can be
defined as a person who puts together a
number of people engaged in separate
activities and arranges them in their
activities in one operation or enterprise.
A supervisory position can be defined as
meaning one who manages or directs or
oversees the activities of others.
The relationship of organizer,
manager or supervisor need not have existed
with regard to the five persons at the same
time, those five persons need not have
acted in concert, and the same type of
supervision need not have been exercised
68a
over each person. While you must
unanimously find that the relationship of
organizer, manager, Or supervisor existed
with regard to five persons you do not have
to unanimously agree on the identity or
same combination of five people. The
supervision need not be direct. Indirect
supervision of others, such as by
delegation of authority to one or more
lieutenants does not detract from the
ultimate status as an organizer, supervisor
or manager. Furthermore, it is not
necessary that the supervisor, manager Or
organizer had personal contact with each
person or that he knew all of them or that
other persons may have exercised
supervision superior to the defendant. The
relationship of organizer, manager, or
supervisor I have described may include a
"middleman" who coordinates activities of
others.
nia
69a
The fifth requirement is that a
defendant obtained substantial income or
resources from the continuing series of
violations of the federal drug laws.
The term “substantial” means "of
real worth and importance; of considerable
value; valuable."
The term "income" can include
money or other property received or
acquired from the transactions in violation
of the drug laws.
Substantial income does not
necessarily mean net income. That is to
say, it could mean gross receipts or gross
income. From what I have already said, it
would follow that the phrase "substantial
income" should be construed as far as
possible in an objective manner. That is,
in order to find a defendant guilty of
engaging in a continuing criminal
enterprise under Count I you must find that
70a
a defendant received what any reasonable
person would consider to be considerable or
ample funds from engaging in a continuing
violation of the drug laws.
Put differently it would be
insufficient to support any conviction here
if all you were to determine was that
although a defendant was guilty of
committing a series of violations, he
obtained only occasional moderate sums of
money from these violations.
If you find from your
consideration of all the evidence that each
of these propositions has been proved
beyond a reasonable doubt, then you have
found that the defendant has engaged in a
continuing criminal enterprise and you
should then proceed to determine whether or
not a defendant is a principal
administrator, organizer, or leader of the
7
7la
continuing criminal enterprise according to
the instructions I will give you.
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,
then you should find the defendant not
guilty as charged in Count I.
To sustain the charge of being a
principal administrator, organizer or
leader of a continuing criminal enterprise
as charged in Count I, the government must
prove, in addition to the fect that the
defendant was engaged in a continuing
criminal enterprise, the following
propositions:
First, that a defendant was the
principal administrator, organizer, or
leader of the continuing criminal
enterprise or was one of several such
principal administrators, organizers, or
leaders of a continuing criminal enterprise
that continued after the effective date of
the statute, October 27, 1986; and
72a
Second, that after October 27,
1986, a defendant committed a violation of
importing marihuana, distributing marihuana
or conspiracy to distribute marihuana &s
charged which involved at least 30,000
kilograms (66,000 pounds) of marihuana.
or
that the enterprise in which a defendant
was a principal or one of several principal
administrators, organizers, or leaders
received $10 million dollars in gross
receipts between October 27, 1986, and
including February 1987, for the
importation or distribution of marihuana.
To find that the first element is
satisfied as to the defendant you are
considering, that defendant must not only
be an “administrator, organizer or leader
or one of several such principal
administrators, organizers or leaders" of
the continuing criminal enterprise but must
also be a “principal administrator,
organizer or leader or one of several such
principal administrators, organizers or
leaders." You should also give the word
73a
“principal” its ordinary and everyday
meaning.
Thus, in order to find beyond a
reasonable doubt that a defendant is one of
the “principal administrators, leaders or
organizers or is one of several such
principal administrators, organizers or
leaders" of a continuing criminal
enterprise, you must find that he was not
merely a member of the management of the
enterprise, but instead ranked in the
highest level of administration, leadership
or control; that is, he was among the most
important, consequential or influential
members of the alleged continuing criminal
enterprise.
"Gross receipts" as set forth in
this instruction means the total amount of
money received by the enterprise as a whole
from the sale of marihuana. It does not
include any monies that the enterprise
74a
anticipated receiving but did not in fact
receive. "Gross receipts” is not limited
to profits, and thus it includes earnings
spent on payroll or other costs of doing
business. In addition, it bears emphasis
that what is at issue is the amount of
money received by the enterprise as 4
whole. Accordingly, the government need
not prove beyond a reasonable doubt that
any of the three defendants charged in
Count I personally received the money.
Thus, for example, if you find
that a quantity of marihuana was sold by a
member of the enterprise, and that the
seller deducted his expenses and then sent
the remainder of the proceeds of the sale
to another member of the enterprise, then
you should consider the entire amount
received by the seller--not just the amount
he passed on--in determining the
75a
enterprise's total gross receipts for that
sale.
If you find from your
consideration of all evidence that each of
these propositions has been proved beyond a
reasonable doubt, then you should find the
defendant guilty as charged in Count l.
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,
then you should find the defendant not
guilty.
GOVERNMENT'S SUGGESTED JURY
INSTRUCTION NO. 20
Second Amended
6.01 7th Circuit Pattern Jury Instruction
Section 58.21 Devitt and Blackmar Federal
Jury Practice and Instructions (Amended in
accordance with:
United States v. Jeffers, 532 F.2d 1101,
1116 (7th CIr. 1976), aff'd in part,
vacated in part, 432 U.S. 137 (1977).
United States v. Becton, 751 F.2d 250, 254-
255 (8th Cir. 1984).
76a
United States v. Adamo, 742 F.2d 927, 933
(6th Cir. 1984).
United States v. Jones, No. 85-2351 (8th
Cir. Sept. 11, 1986).
United States v. Bolts, 558 F.2d 316, 320
(5th Cir. 1977), cert denied, 434 U.S. 930,
98 S.Ct. 417, 439 U.S. 898, 99 S.Ct. 262.
United States v. Bond, Nos. 86-3012 to 86-
3015, Seventh Circuit, decided May 16,
1988.
United States v. Phillips, 664 F.2d 971,
1034 (5th Cir. 1981).
United States v. Tarvers, 833 F.2d 1068
(lst Cir. 1987).
United States v. Apodaca, 843 F.2d 421
(10th Cir. 1988).
77a
REQUESTED JURY INSTRUCTION 1
21 U.S.C. SECTION 848(b)'
CONTINUING CRIMINAL ENTERPRISE
ELEMENTS OF THE OFFENSE
. 21 ¥.8.6. Subsection 848(b),
establishing a mandatory penalty of life,
was added by the Anti-Drug Abuse Act of
1986, pub.L. 99-570, which was signed into
law and became effective on October 27,
1986. In order not to run afoul of the
prohibition against ex post facto laws
contained in Article I, Section 9, of the
United States Constitution, the elements of
the offense of violating Section 848(b) must
be proven beyond a reasonable doubt to have
occurred after the effectiye date of the
enactment of 848(b); that is, October 27,
1986.
The Supreme Court repeatedly has
held that “the ex post facto prohibition
forbids the imposition of punishment more
severe than the punishment assigned by law
when the act to be punished occurred.”
Weaver v. Graham, 450 U.S. 24, 30 (1981)
(citing and discussing cases); Miller v.
Florida, U.S. , 107 S.Ct. 2446, 96
L.Ed.2d 351, 359, 363 (1987). See also,
Weaver, supra, 450 U.S. at 28, quoting
Cummings v. Missouri, 4 Wall. 277. 325-326,
18 L.Ed. 356 (1987) (ex post facto clause
prohibits the imposition of any law "'‘'which
imposes a punishment for an act which was
not punishable at the time it was committed;
or imposes additional punishment to that
then prescribed.'”").
78a
The first count in the
indictment, Count One, generally, charges
RANDY THOMAS LANIER, BENJAMIN BARRY KRAMER,
AND EUGENE ALBERT FISCHER, as being the
principal administrators, organizers or
leaders of a continuing criminal
enterprise, the function of which, the
government claims, was to distribute,
possess with intent to distribute and
import marijuana on a continuing and
substantial basis. The charge is based
upon Title 21, Section 848(b) of the United
States Code, which states that a person has
violated this section if
(1) he violates any provisions of
the federal narcotics laws, the punishment
for which is a felony, and;
(2) such violation is a part of a
continuing series of violations of the
federal narcotics laws
—" -
79a
(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 principal
administrator, organizer or leader.
(b)(1) that the violation
involved at least a specified amount of a
particular controlled substance; and
(2) that the enterprise received
at least $10 million in gross receipts
during any 12 month period of its existence
for the manufacture, importation, or
distribution of certain specific controlled
substances.
This statute was not effective
until October 27, 1986.’ Thus, although
2 A defendant is entitled to an
instruction regarding the enactment date of
the statute under which he is charged, in an
effort to avoid an ex post facto violation.
United States v. Todd, 735 F.2d 146, 150
(5th Cir. 1984); United States v. Brown, 555
F.2d 407 (Sth Cir. 1977), cert. denied, 435
U.S. 904 (1978). Cf. United States v.
Cortez, 757 F.2d 1204, 1207 (11th Cir. 1985)
80a
you have heard testimony relating to acts
and events prior to this date, I instruct
you that you may only find a violation, and
that it is part of a continuing series of
violations, and that the defendant under
consideration is the principal
administrator, organizer or leader in
connection with such violations, from
evidence of acts or events which occurred
after October 27, 1986.
All evidence heard by you
regarding acts or events prior to October
{
("Requiring proof of illegal conduct after
the enactment of the statute prevents it
from running afoul of the ex post facto
clause," citing to United States v. Brown,
supra, which reversed convictions where jury
was not advised of the effective date of the
act or that it must find evidence of a
violation after that effective date.). See
also, United States v. Boffa, 688 F.2d 919,
937 (3rd Cir. 1982) (where Court rejected an
ex post facto challenge to convictions
because the jury was instructed it had to
find proof of RICO conspiracy after a date
which was subsequent to the date of
enactment).
8la
27, 1986, may only be used by you as
bearing upon the existence, purpose and/or
significance of later behavior.’
I thus instruct you that only
acts occurring after October 27, 1986, may
be considered. Thus only those acts
charged in the indictment and occurring
after October 27, 1986 may be used by you
in considering whether the elements of the
continuing criminal enterprise have been
proven beyond a reasonable doubt.
In order to meet its burden of
proof on the specific crime charged in
Count One of the indictment (charging RANDY
THOMAS LANIER, BENJAMIN BARRY KRAMER and
EUGENE ALBERT FISCHER), the government must
prove beyond a reasonable doubt each of the
following six elements:
3 united States v. Flores, 538 F.2d 939,
944 (2d Cir. 1976); United States v. Fino,
478 F.2d 35, 38 (2d Cir. 1973).
82a
FIRST, that the defendant you are
considering violated a felony provision of
the federal narcotics laws after the
enactment date of the statute, October 27,
1986.
SECOND, that this offense was
part of a series of three or more offenses
committed by the defendant in violation of
the federal narcotics laws.
THIRD, that the defendant
committed the offenses in these series of
violations, in concert with five or more
persons.
FOURTH, that the defendant that
you are considering is the principal
administrator, organizer, or leader of the
continuing criminal enterprise.
FIFTH, that the three violations
referred to above occurred after October
83a
27, 1986, and involved at least 30,000
kilograms of marijuana; and‘
SIXTH, that the continuing
criminal enterprise charged in the
indictment, in which the defendant you are
considering was the principal
administrator, organizer, or leader and
received $10 million in gross receipts
during any 12 month period of its existence
for the importation or distribution of
marijuana.
REQUESTED JURY INSTRUCTION 3
SECOND ELEMENT:
CONTINUING SERIES OF VIOLATIONS
The second element that the
government must prove beyond a reasonable
doubt is that the defendant you are
considering committed a continuing series
of offenses in violation of the federal
narcotics laws. In order to constitute a
* See Indictment, p. 5, paragraph 2(a).
84a
"series" the government must prove that the
defendant you are considering acted in
concert with five or more individuals with
respect to whom such defendant is the
principal administrator, organizer or
leader, while committing three or more
violations of the federal narcotics laws.
These three or more offenses must have been
alleged in the indictment, and must have
occurred after October 27, 1986.
Again, only acts occurring after
October 27, 1986, may be considered by you
in determining whether this element has
been proven; if you are first convinced
that each of the elements of each such
violation (about which I will instruct you
later) have been proven beyond a reasonable
doubt.
The term "continuing" means
“enduring” and existing for a definite
65a
period and relates to successive and
similar occurrences.
The commission of three narcotics
violations do not constitute a "series" of
offenses and thus satisfy this element
unless the violations in which the
defendant under consideration is determined
to have participated arise from at least
three separate, distinct instances of
conduct. Let me explain to you what I mean
by this.
| A defendant's participation in a
single instance of conduct involving
narcotic drugs may make him guilty of a
number of statutory offenses. Thus, in the
course of one instance of conduct, he may
have committed several different violations
of the narcotics laws. To constitute a
“series,” not only must there be three or
more offenses, but they must relate to
86a
three or more separate, distinct instances
of conduct on the defendant's part.
In addition, you may not find
this element satisfied unless you are in
unanimous agreement as to the identity of
these offenses constituting a series. In
this regard, you must similarly be
unanimous as to the identity of the
controlled substance imported, possessed or
distributed which was involved in the
series of three or more violations.
For example, if some of you find
that the defendant committed certain
offenses constituting a series, while
others find that he committed other
offenses constituting a4 series, you may not
find him guilty on that basis. Thus,
before you can find this element satisfied,
all of you must be in agreement that the
defendant committed the same three offenses
which comprise the series. If you
87a
unanimously agree on three or more, you
must signify which acts on the special
verdict form that I will supply you.
Finally, before this element can
be satisfied, you must also unanimously
agree upon the identity of the five or more
individuals with whom the series of three
or more violations were committed.
LANIER'S REQUESTED JURY INSTRUCTION 13
Venue generally is defined as
that place where it is appropriate to bring
@ prosecution. Venue is a legal term that
signifies an offense occurred within the
territorial jurisdiction of the court.
Without venue, a court is not able to try
the particular case before it.
Venue is appropriate in this case
if you find that the offense was begun,
continued, or completed within the Southern
District of Illinois.
88a
To find venue in the Southern
District of Illinois, you must find that an
offense occurred within the Southern
District of Illinois. Further, as to Count
One, you must find that such offense
occurred in the Southern District of
Illinois after October 27, 1986. If you
find that the offenses stated in Count One
did not occur as alleged, or did not occur
in the Southern District of Illinois after
October 27, 1986, you will find the
defendants charged in Count One not guilty.
Black's Law Dictionary and Title
18 U.S.C. 3237.
89a
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
UNITED STATES OF AMERICA,
Plaintiff,
Vv.
RANDY THOMAS LANIER,
BENJAMIN BARRY KRAMER
GEORGE PAUL BROCK,
EUGENE ALBERT FISCHER,
WILLIAM R. PALUMBO, and
KAY DEE BELL, JR.,
Defendants.
Criminal No. 87-40070
Title 21 :
Sections 846 and 848
Title 18
Section 371
SUPERSEDING INDICTMENT
THE GRAND JURY CHARGES:
Count 1
That from in or about March 1980,
and continuing thereafter up to and
including February 1987, the exact dates
being unknown to the Grand Jury, in St.
90a
Clair, Madison, and Jefferson Counties,
within the Southern District of Illinois,
Kentucky, Florida, California, West
Virginia, Louisiana, New York,
Pennsylvania, Michigan, Indiana and
elsewhere, RANDY THOMAS LANIER, BENJAMIN
BARRY KRAMER, GEORGE PAUL BROCK, and EUGENE
ALBERT FISCHER, the defendants herein,
knowingly and intentionally did engage in a
Continuing Criminal Enterprise in that they
did violate Title 21, United States Code,
Sections 841l(a)(1), 952(a), 960, and 846
that is, distributing and possessing with
intent to distribute marihuana, importing
marihuana, and conspiring to distribute
marihuana, a Schedule I Controlled
Substance, which violations were part of a
continuing series of violations of said
statutes undertaken by each defendant in
concert with at least five other persons,
with respect to whom each defendant
9la
occupied a position of organizer,
supervisor, or manager, which violations
include three or more of the violations set
forth in Count 2 of this indictment and in
the following paragraphs A through R:
A. In or about January 1982, in Pompano
Beach, Florida, RANDY THOMAS LANIER did
distribute and possess with intent to
distribute a Schedule I controlled
substance, that is, approximately 800
pounds of marihuana, in violation of Title
21, United States Code, Section 841(a)(1).
B. In or about March or April 1982, in
Pompano Beach, Florida, RANDY THOMAS LANIER
did distribute and possess with intent to
distribute a Schedule I controlled
substance, that is, approximately 800
pounds of marihuana, in violation of Title
21, United States Code, Section 841(a)(1).
C. In or about July or August 1982, in
Pompano Beach, Florida, RANDY THOHAS LANIER
did distribute and possess with intent to
distribute a Schedule I controlled
substance, that is, approximately 800
pounds of marihuana, in violation of Title
21, United States Code, Section 841(a)(1).
D. In or about July 1982, in Melbourne,
Florida, BENJAMIN BARRY KRAMER and RANDY
THOMAS LANIER did distribute and possess
with intent to distribute a Schedule I
controlled substance, that is, 15,000
pounds of marihuana, in violation of Title
21, United States Code, Section 841(a)(1).
92a
E. In or about July 1982, BENJAMIN BARRY
KRAMER and RANDY THOMAS LANIER did
knowingly and intentionally import into the
United States, that is Melbourne, Florida,
from a place outside thereof, a controlled
substance, that is approximately 15,000
pounds of marihuana, a Schcdule I
controlled substance, in violation of Title
21, United States Code, Section 952(a) and
960(a)(1).
F. In or about August 1982, in Melbourne,
Florida, BENJAMIN BARRY KRAMER and RANDY
THOMAS LANIER did distribute and posses
with intent to distribute a Schedule I
controlled substance, that is,
approximately 18,000 pounds of marihuana,
in violation of Title 21, United States
Code, Section 841l(a)(1).
G. In or about August 1982, BENJAMIN BARRY
KRAMER, and RANDY THOMAS LANIER, did
knowingly and intentionally import into tli:
United States that is Melbourne, Florida
from a piace -utside thereof, a controlle
substance, ti:at is approximately 18,000
pounds of marihuana, a Schedule I
controlled substance, in violation of T!
21, United States Code, Section 952(a) |
960(a)(1).
H. In or about November 1982, in New x,
New York, RANDY THOMAS LANIER, BENJAM]
BARRY KRAMER, GEORGE PAUL BROCK and EU IE
ALBERT FISCHER did distribute and posse.3
with intent to distribute a Schedule I
controlled substance, that is,
approximately 35,000 pounds of marihuana,
in violation of Title 21, United States
Code, Section 84l(a)(1).
93a
I. In or about November 1982, BENJAMIN
BARRY KRAMER, RANDY THOMAS LANIER, GEORGE
PAUL BROCK, and EUGENE ALBERT FISCHER did
knowingly and intentionally import into the
United States, that is New York, New York,
from a place outside thereof, a controlled
substance, that is approximately 35,000
pounds of marihuana, a Schedule I
controlled substance, in violation of Title
21, United States Code, Section 952(a) and
960(a)(1).
J. In or about March or April 1983 in New
York, New York, RANDY THOMAS LANIER,
BENJAMIN BARRY KRAMER, GEORGE PAUL BROCK,
and EUGENE ALBERT FISCHER, did distribute
and possess with intent to distribute a
Schedule I controlled substance, that is,
approximately 130,000 pounds of marihuana,
in violation of Title 21, United States
Code, Section 841(a)(1).
K. In or about March or April 1983,
BENJAMIN BARRY KRAMER, RANDY THOMAS LANIER,
GEORGE PAUL BROCK, and EUGENE ALBERT
FISCHER, did knowingly and intentionally
import into the United States, that is New
York, New York, from a place outside
thereof, a controlled substance, that is
approximately 130,000 pounds of marihuana,
a Schedule I controlled substance, in
violation of Title 21, United States Code,
Section 952(a) and 960(a)(1).
L. In or about April 1984, in San
Francisco, California, RANDY THOMAS LANIER,
BENJAMIN BARRY KRAMER, GEORGE PAUL BROCK,
and EUGENE ALBERT FISCHER, did distribute
and possess with intent to distribute a
Schedule I controlled substance, that is,
approximately 165,000 pounds of marihuana,
94a
in violation of Title 21, United States
Code, Section 841(a)(1).
M. In or about April 1984, BENJAMIN BARRY
KRAMER, RANDY THOMAS LANIER, GEORGE PAUL
BROCK, and EUGENE ALBERT FISCHER, did
knowingly and intentionally import into the
United States, that is San Francisco,
California, from a place outside thereof, a
controlled substance, that is approximately
165,000 pounds of marihuana, a Schedule I
controlled substance, in violation of Title
21, United States Code, Section 952(a) and
960(a)(1).
N. In or about March or April 1984, in
Pompano Beach, Florida, RANDY THOMAS LANIER
did distribute and possess with intent to
distribute a Schedule I controlled
substance, that is, approximately 800
pounds of marihuana, in violation of Title
21, United States Code, Section 841(a)(1).
O. In or about April 1985, in New Orleans,
Louisiana, RANDY THOMAS LANIER, BENJAMIN
BARRY KRAMER, GEORGE PAUL BROCK and EUGENE
ALBERT FISCHER did distribute and possess
with intent to distribute a Schedule I
controlled substance, that is,
approximately 150,000 pounds of marihuana,
in violation of Title 21, United States
Code, Section 841(a)(1).
P. In or about April 1985, BENJAMIN BARRY
KRAMER, RANDY THOMAS LANIER, GEORGE PAUL
BROCK and EUGENE ALBERT FISCHER, did
knowingly and intentionally import into the
United States, that is New Orleans,
Louisiana, and Millstadt, Illinois, in the
Southern District of Illinois, from a place
outside thereof, a controlled substance,
that is approximately 150,000 pounds of
95a
marihuana, a Schedule I controlled
substance, in violation of Title 21, United
States Code, Section 952(a) and 960(a)(1).
Q. On or about November 12, 1986, in San
Francisco, California, RANDY THOMAS LANIER,
BENJAMIN BARRY KRAMER, GEORGE PAUL BROCK
and EUGENE ALBERT FISCHER did distribute
and possess with intent to distribute a
Schedule I controlled substance, that is,
epproximately 137,000 pounds of marihuana,
in violation of Title 21, United States
Code, Section 841(a)(1).
R. On or about November 12, 1986, BENJAMIN
BARRY KRAMER, RANDY THOMAS LANIER, GEORGE
PAUL BROCK, and EUGENE ALBERT FISCHER, did
knowingly and intentionally import into the
United States, that is San Francisco,
California, from a place outside thereof, a
controlled substance, that is approximately
137,000 pounds of marihuana, a Schedule I
controlled substance, in violation of Title
21, United States Code, Section 952(a) and
960(a)(1).
from which continuing series of violations
the defendants obtained substantial income
and resources to which the United States is
entitled to forfeiture.
The Grand Jury further charges
with respect to Count 1:
1. That RANDY THOMAS LANIER,
BENJAMIN BARRY KRAMER, GEORGE PAUL BROCK,
96a
and EUGENE ALBERT FISCHER, are each
principal administrators, organizers and
leaders of the enterprise described herein
and each is one of several such principal
administrators, organizers, and leaders;
and
2. (a) That the violation
referred to in paragraphs Q and R of this
count of the indictment involved at least
30,000 kilograms of marihuana; and
(b) That the enterprise
described herein in which RANDY THOMAS
LANIER, BENJAMIN BARRY KRAMER, GEORGE PAUL
BROCK and EUGENE ALBERT FISCHER were each
one of several principal administrators,
organizers, and leaders, received in excess
of ten (10) million dollars in gross
receipts during the period from November
25, 1986, to and including February 1987,
for the importation and distribution of
marihuana as described herein; all in
97a
violation of Title 21, United States Code,
Section 848(b).
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.