Opposition Brief — Fischer v. United States

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Nos. 92-115 and 92-177.

1992

E CLERK

In the Supreme Court of the Hiuted States

OCTOBEL: TERM, 1992

EUGENE ALBERT FISCHER, PETITIONER -

ws

UNITED STATES OF AMERICA

BENJAMIN BARRY KRAMER AND

RANDY THOMAS LANIER, PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

oh Assistant Attorney General

JOEL M. GERSHOWITZ

Attorneys x

rtment of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTIONS PRESENTED

1. Whether petitioners’ life sentences, under 21

U.S.C. 848(b), for being principal administrators, orga-

nizers, or leaders of a continuing criminal enterprise vi-

olated the Ex Post Facto Clause of the Constitution.

2. Whether the jury must be instructed that it must

unanimously agree on which drug offenses comprised the

“series of violations” element of a CCE offense (No. 92-

115).

3. Whether the district court properly denied peti-.

tioner’s motion for leave to depose foreign witnesses (No.

92-115).

(1)

TABLE OF CONTENTS

Opinion belOW...........:csscesceseeseeseeneeeeeeetseseeeeeseneesenneseneeeensnees

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IIE <7. ssnntbaneanhahsapendotonenneschessssabescsencennsanssensss

Argument ...........ccscceeeeeeeeeseseeeeseeecenneestenseeeeseaeecessaeeanenenseees

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TABLE OF AUTHORITIES

Cases:

Collins v. Youngblood, 110 S. Ct. 2715 (1990) ............

Griffin v. United States, 112 S. Ct. 466 (1991) ...........

McKoy v. North Carolina, 494 U.S. 433 (1990) ..........

Miller v. Florida, 482 U.S. 423 (1987) .........:ssesesseee

Platt v. Minnesota Mining. & Mfg. Co., 376 U.S.

BS IED. cscschasknstncsasecnsabacnnnanavonsanntecesenseeouasecssesaseses

Schad v. Arizona, 111 S. Ct. 2491 (1991) ..............0

United States v. Baker, 905 F.2d 1100 (7th Cir.), cert.

denied, 111 S. Ct. 206 (1990) ............cceeeeeeeseeseeeeeeeeeeeneees

United States v. Baresh, 790 F.2d 392 (5th Cir. 1986) .....

United States v. Bello, 5382 F.2d 422 (5th Cir. 1976) ..

United States v. Beros, 833 F.2d 455 (8d Cir. 1987) .....

United States v. Campanale, 518 F.2d 352 (9th Cir.

1975), cert. denied, 428 U.S. 1050 (1976) .................

United States v. Canino, 949 F.2d 928 (7th Cir. 1991),

cert. denied, 112 S. Ct. 1940 (1992) ............:eeeeeeeeeeees

United States v. Echeverri, 854 F.2d 638 (3d Cir. 1988)...

United States v. Ferrara, 458 F.2d 868 (2d Cir.), cert.

denied, 408 U.S. 931 (1972) ...........:csesessesseeeeeeeteeeeenees

United States v. Gipson, 553 F.2d 453 (5th Cir. 1977) ...

United States v. Giry, 818 F.2d 120 (1st Cir. 1987), cert.

denied, 484 U.S. 855 (1987) ..........::::sseeeeeeeeeeeeseeeeeeeees

United States v. Hall, 843 F.2d 408 (10th Cir. 1988) ....

United States v. Hicks, 945 F.2d 107 (5th Cir. 1991) .....

(IIT)

IV

Cases—Continued: Page

United States v. Ismaili, 828 F.2d 1538 (8d Cir. 1987),

cert. denied, 485 U.S. 985 (1988) ........... ee 16-17, 18

United States v. Jackson, 879 F.2d 85 (83d Cir. 1989) .... 16

United States v. Jerome, 942 F.2d 1328 (9th Cir. 1991) . 16

United States v. Johnpoll, 739 F.2d 702 (2d Cir.), cert.

denied, 469 U.S. 1075 (1984) .......... Ei AN ee «CF OR 17

United States v. Johnson, 537 F.2d 11470 (4th Cir.

IIE cin cucrscscnnnconcekareniastedsleecnseke adenenteau ace onemaesdbiaicaa Melasmiaannaas 8

United States v. Mann, 590 F.2d 361 (Ist Cir. 1978) .... 16

| United States v. Ordonez, 737 F.2d 793 (9th Cir. 1984). 14

United States v. Sindona, 636 F.2d 792 (2d Cir. 1980),

| cert. denied, 451 U.S. 912 (1981) ..............cccsccceesseees 18

United States v. Torres, 901 F.2d 205 (2d Cir. 1990) .... 12

Weaver v. Graham, 450 U.S. 24 (1981) ...................08. 8

Constitution, statutes and rule:

U.S. Const. Art. I, § 9, Cl. 3 (Ex Post Facto Clause) ....... ss

8, 12, 13

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| Oe ee, IID vcccpatvnccbacsunvaksnaceasbniccasbatetbhaetataastmneies 13

I oon se ca aceuaniadplneanvemennetnionns 2

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Miscellaneous:

2 Charles Alan Wright, Federal Practice and Procedure

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In the Supreme Court of the Anited States

OCTOBER TERM, 1992

No. 92-115

EUGENE ALBERT FISCHER, PETITIONER

wa

UNITED STATES OF AMERICA

No. 92-177

BENJAMIN BARRY KRAMER AND

RANDY THOMAS LANIER, PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App 1a-59a)’

is reported at 955 F.2d 479.

1 “Pet. App.” refers to the Appendix filed in No. 92-177, ex-

cept where indicated otherwise.

(1)

2

JURISDICTION

The judgment of the court of appeals was entered on

January 30, 1992. A petition for rehearing was denied on

April 14, 1992. The petitions for a writ of certiorari were

filed on July 18, 1992. The jurisdiction of this Court is

invoked under 28 U.S.C, 1254(1).

STATEMENT

After a jury trial in the United States District Court

for the Southern District of Illinois, petitioners were

convicted of conspiring to distribute marijuana, in viola-

tion of 21 U.S.C. 846, and engaging in a continuing crim-

inal enterprise, in violation of 21 U.S.C. 848. Pet. App.

2a. Petitioner Lanier was also convicted of conspiring to

defraud the United States, in violation of 18 U.S.C. 371.

Petitioners were sentenced to life imprisonment without

possibility of parole on the CCE count. Petitioners

Lanier and Kramer were also sentenced to 40 years’ im-

prisonment on the Section 846 conspiracy count, and pe-

titioner Fischer was sentenced to 35 years’ imprison-

ment on the Section 846 conspiracy count, with those

sentences to run concurrently with the CCE sentences.

In addition, petitioner Lanier was sentenced to 5 years’

imprisonment on the Section 371 conspiracy count, with

that sentence to run consecutively to his sentence for

the Section 846 conspiracy. Petitioners Lanier and

Kramer were ordered to forfeit $60,000,000, while peti-

tioner Fischer was ordered to forfeit $30,000,000. Pet.

App. 3a. The court of appeals affirmed. Jd. at 1a-59a.

1. The evidence showed that petitioners ran a mari-

juana smuggling operation from which they reaped tens

of millions of dollars in profits in the early to mid-1980’s.

In 1982, Lanier and Kramer arranged for two boatloads of

marijuana to be imported from Colombia to Melbourne

Beach, Florida. Fischer assisted Lanier and Kramer in

organizing and carrying out the next five transactions.

3

In the spring of 1988, they imported 30,000 pounds of mar-

ijuana into Bridgeport, Connecticut, and arranged its

distribution. In the fall of 1983, they transported a barge

containing approximately 14,000 pounds of marijuana to

New York. Pet. App. 4a-6a. Marijuana from each of

those loads was transported to Southern Illinois for dis-

tribution. Gov’t C.A. Br. 5-6, 8.

In the next transaction, which took place in 1984,

Lanier, Kramer, and Fischer imported a bargeload of

147,000 pounds of marijuana into San Francisco. Cus-

tomers of Lanier and Kramer delivered some of that mar-

ijuana to Millstadt, Illinois. The sale of the marijuana

brought in more than $50 million. In the spring of 1985,

the enterprise smuggled a bargeload of approximately

152,000 pounds of marijuana into New Orleans, some of

which was shipped to Millstadt. Kramer purchased the

marijuana in Colombia, Fischer rented the dock space

and arranged to bring the barge to dock, and Lanier di-

rected its unloading. Pet. App. 6a-7a.

In the final transaction, which took place in November

1986, petitioners’ enterprise imported approximately

130,000 pounds of marijuana into San Francisco. Kramer

arranged for the purchase and, with Lanier, the distribu-

tion of the marijuana, while Fischer provided the work-

ers who removed the marijuana from the barge and

loaded it onto trailers. The enterprise collected

$34,795,000 for that load. Kramer received $12,500,000;

Fischer split $10,253,000 with another principal in the

enterprise, George Brock; and Lanier received the bal-

ance. Pet. App. 8a-9a.

2. Prior to trial, Fischer asked the district court for

leave to take the depositions of ten foreign witnesses—

two in Venezuela, six in the Dominican Republic, one in

Great Britain, and one in the Netherlands. Fischer

stated in his motion that those witnesses, two of whom

were unindicted co-conspirators, would refute govern-

4

ment allegations that Fischer owned certain vessels and

entities connected with vessels involved in the marijuana

smuggling operation. Fischer also stated that the wit-

nesses were unwilling to travel to the United States to

testify. May 24, 1988, Mem. and Order at 1-2.

The district court denied the motion, stating that Fis-

cher had “not sustained his burden of proving that ex-

traordinary circumstances exist justifying foreign depo-

sitions.” May 24, 1988, Mem. and Order at 2-3. The

court explained that Fischer had offered only conclusory

statements concerning the unavailability of the wit-

nesses. He had failed to specify sufficiently what testi-

mony the witnesses would give, to provide an explanation

of the witnesses’ knowledge of the matters about which

they would testify, to demonstrate that the testimony

would not be cumulative of other evidence, and to estab-

lish the materiality of the testimony. /d. at 2-4. On the

matter of materiality, the court stated that Fischer’s

“legitimate connections with the[] vessels or entities

would not necessarily dispel their concurrent illegal

use.” Id. at 3.

3. The continuing criminal enterprise (CCE) statute

provides for a mandatory life sentence for a person en-

gaging in a CCE offense if

(1) such person is the principal administrator, orga-

nizer, or leader of the enterprise or is one of several

such principal administrators, organizers, or leaders;

and (2)(A) the violation [referred to in the provision

defining “continuing criminal enterprise”] involved

at least 300 times the quantity of a substance de-

scribed 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 princi-

pal administrators, organizers, or leaders, received

$10 million dollars in gross receipts during any

twelve-month period of its existence for the manufac-

5

ture, importation, or distribution of a substance de-

scribed in section 841(b)(1)(B) of this title.

21 U.S.C. 848(b).

At trial, the district court submitted to the jury the

question whether petitioners were liable under Section

848(b). The court instructed the jury that, in order to

conclude that a defendant was a principal administrator,

organizer, or leader of a continuing criminal enterprise

within the meaning of the statute, it would have to find

both of the following:

First, that a defendant was the principal adminis-

trator, organizer, or leader of the continuing crimi-

nal enterprise or was one of several such principal

administrators, organizers, or leaders of a continu-

ing criminal enterprise that continued after the ef-

fective date of the statute, October 27, 1986:

Second, that after October 27, 1986, a defendant

committed a violation of importing marijuana, dis-

tributing marijuana or conspiracy to distribute mari-

juana as charged which involved at least 30,000 kilo-

grams * * * of marijuana or that the enterprise in

which a defendant was a principal * * * received $10

million in gross receipts between October 27, 1986,

and including February 1987, for the importation or

distribution of marijuana.

Pet. App. 12a-13a.

As to venue, the court instructed the jury that it could

convict a defendant only if it found that the defendant

committed at least one of the predicate drug offenses in

the Southern District of Illinois. It did not require the

jury to find that a predicate offense occurred in that dis-

trict after the effective date of Section 848/b). Gov’t C.A.

Br. 43.

6

4. On appeal, petitioners contended that Section 848(b)

is a separate substantive offense rather than a sentence

enhancement provision. Therefore, they claimed, their

CCE convictions violated the Ex Post Facto Clause of

the United States Constitution because the instructions

did not require the jury to find that they engaged in the

predicate drug offenses after October 27, 1986. The court

of appeals did not reach the validity of petitioners’

premise that Section 848(b) creates a substantive of-

fense, although it expressed the view that it does not.

Pet. App. 15a. The court held, however, that even if that

premise were correct there would be no ex post facto vio-

lation. Jd. at 16a. The court explained that the Ex Post

Facto Clause does not prohibit prosecution for offenses

that began before the effective date of the statute and

continued thereafter. Jd. at 17a. The court then ob-

served that in its view the district court’s instruction

properly required the jury to find that petitioners were

principal administrators, organizers, or leaders of a con-

tinuing criminal enterprise until after the effective date

of Section 848(b), and that the evidence showed that peti-

tioners continued to participate in the enterprise after

that date. Pet. App. 19a.

Petitioners further argued that venue for the CCE

charge did not lie in the Southern District of Illinois be-

cause none of the predicate acts occurred in that district

after the effective date of Section 848(b). The court held

that, because the CCE offense continued after the effec-

tive date of Section 848(b), venue could be established by

proof that an act in furtherance of the offense took place

in the Southern District of Illinois before the statute’s

effective date. Pet. App. 22a. The court then concluded

that the evidence was sufficient to establish proper

venue. Jd. at 23a.

The court of appeals also found no merit in Fischer’s

claim that the district court should have instructed the

7

jury that it must agree unanimously as to each of the

predicate offenses constituting the “continuing series”

element of the CCE offense. The court relied, Pet. App.

25a-26a, on its earlier decision in United States v.

Canino, 949 F.2d 928 (7th Cir. 1991), cert. denied, 112 S.

Ct. 1940 (1992), which held that “(t]he constitutional re-

quirement of juror unanimity in federal criminal of-

fenses is satisfied when each juror in a CCE trial is con-

vinced beyond a reasonable doubt that a defendant

charged under the CCE statute committed two predicate

offenses.” 949 F.2d at 948.

Finally, the court rejected without discussion peti-

tioner Fischer’s claim that the district court improperly

refused to allow him to obtain the depositions of the for-

eign wiinesses. Pet. App. 53a.

ARGUMENT

1. Petitioners contend (91-115 Pet. 10-37; 92-177 Pet.

12-43) that the application of Section 848(b) in this case

violated the Ex Post Facto Clause because the jury was

not required to find that petitioners acted as principal

administrators, organizers, or leaders of the enterprise

after October 27, 1986, the effective date of Section

848(b), or that they committed at least one of the predi-

cate drug offenses in the Southern District of Illinois,

the jurisdiction in which venue was laid, after that date.’

2 We do not believe it was necessary for the district court to

submit the question of the applicability of Section 848(b) to the jury

because, in our view, the statute, rather than creating a new sub-

stantive offense, is a sentencing provision providing for enhanced

punishment for certain violations of Section 848(a). This is sug-

gested, among other factors, by the title of the statute—

“Conditions for Life Imprisonment for Engaging in Continuing

Criminal Enterprise”; by the fact that the statute contains an ex-

plicit reference to the necessary conviction under the predicate

provision, Section 848(d) (now codified at subsection (c)); and by

the fact that the statute limits the district court’s discretion in sen-

8

The Ex Post Facto Clause prohibits Congress from

“punish[ing! as a crime an act previously committed,

which was innocent when done” or “mak[ing] more bur-

densome the punishment for a crime, after its commis-

sion.” Collins v. Youngblood, 110 8S. Ct. 2715, 2724 (1990).

The purpose of the prohibition is “to assure that legisla-

tive acts give fair warning of their effect and permit in-

dividuals to rely on their meaning until explicitly

changed.” Weaver v. Graham, 450 U.S. 24, 28-29 (1981).

Petitioners’ enhanced sentences under Section 848(b)

did not violate the Ex Post Facto Clause. As the court of

appeals observed, Pet. App. 17a, it is well settled that the

ex post facto prohibition is not violated when an offense,

though begun before the effective date of the pertinent

statute, continues thereafter. See United States v. Giry,

818 F.2d 120, 135 (1st Cir.), cert. denied, 484 U.S. 855

(1987); United States v. Baresh, 790 F.2d 392, 404 (5th

Cir. 1986); United States v. Campanale, 518 F.2d 352, 365

(9th Cir. 1975), cert. denied, 423 U.S. 1050 (1976); United

States v. Ferrara, 458 F.2d 868, 874 (2d Cir.), cert. denied,

408 U.S. 931 (1972). There can be no question that the

CCE statute, which makes it a crime to engage in a

“continuing criminal enterprise,” defines a continuing

offense. See United States v. Johnson, 537 F.2d 1170 (4th

Cir. 1976). Accordingly, subjecting a defendant to the

penalty prescribed in Section 848(b) would violate the Ex

Post Facto Clause only if the defendant’s criminal con-

duct terminated before October 27, 1986, the effective

date of Section 848(b). Cf. Campanale, 518 F.2d at 365

tencing within the range set forth in Section 848(a). Petitioners do

not challenge the district court’s submission of the sentence en-

hancement determination to the jury; on the contrary, they take

the position that Section 848(b) is a substantive provision and

therefore that that action was proper. 91-115 Pet. 10-19; see 92-177

Pet. 34 n.10.

9

(RICO statute applies where racketeering continued af-

ter RICO’s effective date).

In this case, the district court instructed the jury that

it could find Section 848(b) applicable to a defendant only

if it made two findings: -(1) that the defendant “was [a]

principal administrator * * * of a.continuing criminal

enterprise that continued after the effective date of the

[provision],” and (2) either that the defendant “committed

a [drug offense] involv[ing] at least 30,000 kilograms * * *

of marijuana” after the effective date ofthe provision or

“the enterprise in which a defendant was a principal * * *

administrator[] * * * received $10 million in gross

receipts * * * for the importation or distribution of

marijuana” after the effective date of the statute.

Pet. App. 12a-13a. As the court of appeals concluded,

those instructions adequately informed the jury that

they could not apply Section 848(b) if they concluded that

petitioners “stopped acting as principal administrators

after § 848(b) became effective.” Pet. App. 21a.

Although the instruction as given plainly can be read

to require the jury to find that petitioners continued as

principal administrators of the enterprise after the ef-

fective date of the statute, petitioners now in essence ob-

ject that the instruction as given was ambiguous. In pe-

titioners’ view, the instruction can also be read to permit

the jury to convict petitioners based on a finding that the

enterprise continued after October 27, 1986, but that pe-

titioners themselves neither continued to act as princi-

pal administrators after that date nor committed any

other predicate act after that date. Petitioners never ob-

jected to the instructions, however, on the ground that

they were ambiguous in this regard. Nor_could any such

ambiguity have affected the jury’s deliberations, in light

of the facts of the case and the way the case was argued

to the jury.

10

In the district court, petitioners repeatedly objected to

the indictment and the instructions on the ground that

all elements of the Section 848(b) crime had to be satis-

fied after October 27, 1986. They moved for judgments of

acquittal after the close of the government’s case on that

basis, see T'r. 8614-8615, 8623-8624; they submitted their

own proposed instructions embodying that theory, see,

e.g., 92-177 Pet. App. 79a-81a; and they objected to the

government’s proposed instruction, which was adopted in

relevant part by the court, on the basis of that theory as

well, see Tr. 9996, 10,003, 10,486. They never asserted,

however, that the instruction permitted the jury to con-

vict them even if the jury found that they ceased acting

as principal administrators, organizers, or leaders of the

enterprise prior to the effective date of the statute. As

we explained in our brief below, petitioners’ failure to ob-

ject on that ground indicates that they themselves un-

derstood the instruction as did the court of appeals and in

any event that they waived any such objection they

might have had. See Gov’t C.A. Br. 49.

Moreover, in light of the arguments presented by both

the prosecutor and defense counsel, it is highly unlikely

that the jury interpreted the instruction as petitioners

now allege. In their arguments to the jury, both the gov-

ernment and defense counsel conveyed their understand-

ing that the jury instructions required the jury to find -

that the defendants were principal administrators, orga-

nizers, or leaders after the effective date of the statute.

See Gov’t C.A. Br. 48-49. The prosecutor informed the

jury in closing argument that it “must find that the or-

ganization, or the enterprise, first of all, that he was a

principal administrator after the effective date of the

statute which is October 27, 1986.” Tr. 10,115. Kramer’s

counsel told the jury in closing argument that “[y]Jou

will be instructed that you are to measure specific activ-

ities of Ben Kramer subsequent to October 27th, 1986,

11

when you are considering his culpability under Section

848(b) of Title 21.”* Tr. 10,230. Fischer’s counsel in dis-

cussing the “principal administrator, organizer or

leader” requirement similarly referred to the “new law

that went into effect in 1986, October 27, 1986.” Tr.

10,275. In addition, during the prosecutor’s rebuttal ar-

gument, there was a further colloquy between the prose-

cutor, Kramer’s counsel, and the court in the presence of

the jury, in which it was made clear that all parties

shared the understanding that the “principal administra-

tor” requirement had to be satisfied after October 27,

1986.*

Finally, the evidence was overwhelming that in

November 1986, after the effective date of the statute, pe-

titioners imported tons of marijuana into San Francisco

and received millions of dollars in proceeds from that

shipment. Even petitioner Kramer, who was not in San

Francisco when the marijuana was unloaded there, re-

ceived $12 million from the proceeds of the shipment. In

light of the statements of various counsel themselves

and the evidence in this case, the instructions ade-

quately informed the jury that it had to find that tne de-

3 Since the government did not allege that Kramer was on the

scene during the unloading of the November 1986 shipment in San

Francisco, his counsel was in the best position to take advantage of

the requirement that the crime had to be shown to have continued

past October 27, 1986.

4 The prosecutor stated that “[w]Jith respect to being a principal

administrator, you have to determine whether or not the activity

of the enterprise continued past October 27, 1987 * * * whether

these individuals committed acts after October 27, 1987.” Tr.

10,379. Kramer’s counsel noted that the appropriate year was

1986. Ibid. The prosecutor corrected himself, noting that the

correct date was October 27, 1986, and added that “[t]he issue is

whether or not the defendants were involved after that period of

time and committed one of those acts. For instance, importation.”

Ibid. ;

12

fendants acted as principal administrators, organizers,

or leaders of the enterprise after October 27, 1986.

Petitioners’ reliance on United States v. Torres, 901

F.2d 205 (2d Cir. 1990), is misplaced. In that case, the

jury was permitted to convict the defendants of violating

Section 848(b) based on a finding that the elements of the

statute were satisfied during a one-year period that

straddled the effective date of the statute. 901 F.2d at

226. Because of the possibility that the jury relied exclu-

sively on the defendants’ role in the enterprise before the

effective date of the statute, the court remanded the case

for resentencing. In this case, by contrast, the jury in-

structions did not authorize the application of Section

848(b) if the jury found that petitioners were no longer

principal administrators, organizers, or leaders after the

statute became effective.”

Nor was the Ex Post Facto Clause violated by the dis-

trict court’s failure to instruct the jury that, in order to

convict, it had to find that petitioners committed a predi-

cate act in the Southern District of Illinois after the ef-

fective date of Section 848(b). For a continuing offense

5 Petitioner Fischer argues (92-115 Pet. 30) that conspiracy

does not qualify as a predicate offense for purposes of CCE and

that the jury instructions impermissibly permitted the jury to ap-

ply Section 848(b) even if it found that the violation of the drug

laws they committed after the effective date of the statute was the

crime of conspiracy. On appeal, the court of appeals agreed with

petitioners that conspiracy may not be counted as a predicate act,

but the court held that the error in the instructions was harmless

because petitioners were also charged with a number of substantive

predicate offenses, including the post-( Yetober 27, 1986, San Fran-

cisco importation, that were “more than adequate” to meet the

“series” element. Pet. App. 24a. No other court of appeals that

has addressed the issue would have reached a different result,

since each of those courts has held that conspiracy may qualify as a

predicate act. See United States v. Hicks, 945 F.2d 107, 108 (5th

Cir. 1991) (citing cases).

13

such as CCE, venue is proper in any district in which the

offense “was begun, continued, or completed.” See 18

U.S.C. 3237(a). We know of no authority—and petition-

ers cite none—for the proposition that, under the Ex

Post Facto Clause, the act on which venue is based must

occur after the effective date of the charging statute,

where the crime commenced before that date. Such a re-

quirement would have no relation to the purpose of the

Ex Post Facto prohibition, which is to ensure that indi-

viduals have notice of what conduct is deemed criminal

and how it will be punished. See Miller v. Florida, 482

U.S. 423, 433 (1987). Nor would it have any relation to

the purpose of the constitutional or statutory venue pro-

visions, which are safeguards “against the unfairness

and hardship involved when an accused is prosecuted in a

remote place.” Platt v. Minnesota Mining & Mfg. Co.,

376 U.S. 240, 245 (1964). Accordingly, further review to

consider whether the court of appeals should have

adopted petitioners’ novel venue argument is unwar-

ranted.

2. Petitioner Fischer contends (92-115 Pet. 38-46) that

the district court should have instructed the jurors that

they must unanimously agree on which particular

violations of law constituted the “series of violations” re-

quired to establish a CCE offense.

The CCE statute imposes criminal penalties for en-

gaging in a “continuing criminal enterprise.” 21 U.S.C.

848. It further states that a person is engaged in a-con-

tinuing criminal enterprise if (1) he violates a provision

of subchapter I or II of chapter 13 of Title 21 (dealing

with control, enforcement, import and export of drugs);

and (2) “such violation is a part of a continuing series of

violations” of those subchapters, in which the person or-

ganizes, manages, or supervises five or more other par-

ticipants and the person obtains substantial income. 21

U.S.C. 848(c). Thus, the CCE statute requires the jury

14

to find that the defendant’s violation has a certain char-

acteristic, i.e., that it is “a part of a continuing series of

violations.” But the statute does not require unanimous

agreement as to the specific identity of the other viola-

tions that make up that series. The jury’s unanimous

agreement that the subject violation is “a part of a con-

tinuing series of violations” is sufficient to satisfy that

element of the offense.°

That conclusion is consistent with settled law con-

cerning jury unanimity and sufficiency of the evidence.

This Court has consistently recognized that an indict-

ment need not specify what means, among several named,

was used to commit a crime, and that a jury need not

agree on a single means of commission. See Griffin v.

United States, 112 S. Ct. 466, 469-470 (1991); Schad v.

Arizona, 111 S. Ct. 2491, 2496-2497 (1991) (plurality opin-

ion). As the court noted in Schad,

[iJn these cases, as in litigation generally, “different

jurors may be persuaded by different pieces of evi-

dence, even when they agree on the bottom line.

Plainly there is no general requirement that the

jury reach agreement on the preliminary factual is-

sues which underlie the verdict.”

Id. at 2497 (plurality opinion) (quoting McKoy v. North

Carolina, 494 U.S. 433, 449 (1990)); accord 111 S. Ct. at

6 The courts of appeals have generally concluded that a “series

of violations” means three or more violations. See United States v.

Hall, 843 F.2d 408, 411 (10th Cir. 1988); United States v. Ordonez,

737 F.2d 793, 806 (9th Cir. 1984). The Seventh Circuit has held

that two violations, excluding conspiracy and other inchoate

offenses, are sufficient. United States v. Baker, 905 F.2d 1100,

1102-1104, cert. denied, 111 S. Ct. 206, 270, 686 (1990). The jury in-

struction here required three violations and allowed the conspiracy

charge to be counted. Hence, this case does not raise the question

whether the Seventh Circuit’s rule that two offenses constitute a

“series” under the CCE statute is correct.

15

2506 (Scalia, J., concurring in part and concurring in the

judgment). In the case of CCE prosecutions, it is suffi-

cient that the jurors unanimously agree that the defen-

dant committed a drug offense and that the offense was

“a part of a continuing series of violations.” The jury

need not unanimously agree on which particular viola-

tions constituted that series.

Fischer argues that the court of appeals’ decision con-

flicts with the Third Circuit’s decision in United States

v. Echeverri, 854 F.2d 638, 643 (1988). In Echeverri, the

court of appeals, explicitly relying on the theory of juror

unanimity that the Fifth Circuit employed in United

States v. Gipson, 553 F.2d 453 (1977), held that a district

court committed reversible error by failing to instruct a

jury that it must unanimously agree on the constituents

of the “continuing series of violations.”’ Schad, however,

specifically disapproved of the Gipson analysis, stating

that Gipson’s focus on juror unanimity did not answer

the question whether the alternative findings permitted

by the statute were merely different means of

committing the same crime or separate and distinct of-

fenses. 111 S. Ct. at 2498 & n.5. Accordingly, Schad has

undermined Echeverri’s foundation.

Significantly, the Third Circuit held in another case

predating Schad that a specific unanimity instruction

7 The Third Circuit also cited United States v. Beros, 833 F.2d

455, 460 (3d Cir. 1987), which also relied on Gipson. See Echeverri,

854 F.2d at 642. The Third Circuit did not make entirely clear

whether such an instruction is required in every CCE case or only

in unusually complex CCE cases. The court emphasized that the

indictment in the case before it did not specify the violations that

constituted the continuing series and offered no aid in focusing the

jury’s attention on the predicate acts. It also noted that the

district court gave a specific unanimity instruction on predicate

acts pertaining to a racketeering count, which, when coupled with

the absence of a specific unanimity instruction on the CCE count,

might have confused the jury. 854 F.2d at 643.

16

was not required with respect to a different aspect of the

CCE offense—the identities of the five or more under-

lings necessary to sustain a CCE charge. United States

v. Jackson, 879 F.2d 85 (1989). As the Seventh Circuit

has noted, the Third Circuit’s rulings in Echeverri and

Jackson are difficult to reconcile. United States v.

Canino, 949 F.2d at 946-947. In light of this Court’s deci-

sion in Schad, it is at least unclear that the Third Cir-

cuit would adhere to its holding in Echeverri if it were to

face the issue again in a future case.” Accordingly, it

cannot be concluded that there is a continuing conflict

between the Seventh and Third Circuits concerning the

need for a specific unanimity instruction on the

predicate acts in a CCE case.

3. Petitioner Fischer contends (92-115 Pet. 46-55)

that the district court erred in denying his motion for

leave to depose foreign witnesses.

Federal Rule of Criminal Procedure 15(a) authorizes

the taking of depositions “[w]henever due to exceptional

circumstances of the case it is in the interest of justice

that the testimony of a prospective witness of a party be

taken and preserved for use at trial.” In light of the pol-

icy favoring live testimony at criminal trials, a district

court’s discretion to authorize depositions “is not broad

and should be exercised carefully.” United States v.

Mann, 590 F.2d 361, 365 (1st Cir. 1978). See also United

8 Nor is Fischer helped by United States v. Jerome, 942 F.2d

1328 (9th Cir. 1991), which he also cites (92-115 Pet. 44). In that

CCE case, the government argued at trial that the defendant had

organized 12 individuals, whom it identified by name. On appeal,

the government conceded that the defendant was not the orga-

nizer of six of those individuals. In those unusual circumstances,

the court of appeals held that the district court should have in-

structed the jury that it must agree unanimously as to the identity

of each of the five people organized by the defendant. 942 F.2d at

1231. No such circumstances were present here.

17

States v. Ismaili, 828 F.2d 1538, 159 (3d Cir. 1987), cert.

denied, 485 U.S. 935 (1988); 2 Charles Alan Wright, Fed-

eral Practice and Procedure (Criminal 2d) § 242, at 13

(1982). The critical factors in determining whether a de-

position should be authorized are the witness’s unavail-

ability and the materiality of the testimony that the wit-

ness would give. See Jsmaili, 828 F.2d at 159. The deci-

sion to grant or deny a motion to take depositions should

not be disturbed absent a clear abuse of discretion. See

United States v. Johnpoll, 739 F.2d 702, 708 (2d Cir.),

cert. denied, 469 U.S. 1075 (1984).

The district court did not abuse its discretion in refus-

ing to authorize the depositions. At trial, several gov-

ernment witnesses who participated in the marijuana

importation operation testified about Fischer’s involve-

ment in smuggling marijuana aboard the vessels in ques-

tion. Gov’t C.A. Br. 106. Because the government’s

case did not depend on Fischer’s actual ownership of the

vessels, the testimony of the foreign witnesses disputing

such ownership would not have been significantly excul-

patory. See United States v. Bello, 532 F.2d 422, 423 (5th

Cir. 1976) (“Depositions indicating that Bello had legiti-

mate business purposes for his trips would not contra-

dict the substantial evidence that Bello was a participant

in the two cocaine transactions at issue in this case.”).

Accordingly, this case does not present the “extra-

ordinary circumstances” that would have warranted

authorizing the depositions. As the court of appeals

stated in Ismaili, 828 F.2d at 161-162, “if the testimony of

witnesses in a criminal case could not negate the crux of

the government’s indictment * * * , the district court

cannot be held to have abused its discretion in denying

18

authority to permit depositions of such witnesses under

Rule 15(a).’””

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

JOEL M. GERSHOWITZ

Attorneys

OCTOBER 1992

9 Fischer’s reliance on United States v. Sindona, 636 F.2d 792

(2d Cir. 1980), cert. denied, 451 U.S. 912 (1981), is unavailing. In

that case, the court of appeals allowed the government to depose

foreign witnesses over defense objection that the witnesses were

not unavailable. The defendant did not dispute the importance of

the testimony of the foreign witnesses, as we do here.