Reply Brief — Fischer v. United States

Bupreme Court, U.S

FILED

NOV 2 1992

* OFFICE OF THE CLERI

a

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

No. 92-177

BENJAMIN BARRY KRAMER and

RANDY THOMAS LANIER

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

ON JOINT PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

JOINT REPLY TO THE BRIEF FOR THE

UNITED STATES IN OPPOSITION

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

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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, 1386,

the petitioners acted as the principal

administrators, organizers, or leaders over

a continuing series of violations of the

narcotics laws.

ii

TABLE OF CONTENTS

QUESTION PRESENTED ......cccccccccccces i

TABLE OF CONTENTS .....-eceeceees cecces ii

TABLE OF AUTHORITIES .....cccecccsccces iii

ARGUMENT

I. The Instructions Given the Jury

in this Case did not Require the Jury

to Find that the Petitioners Acted

as the "Principal Administrators" over

a Continuing Series of Drug Offenses

After the Effective Date of 21 U.S.C.

Section 848(b) in Order to Return to

a Verdict of Guilty on the CCE Count

in the Indictment .....ccccrccccccces 2

II. The Decision Below Cannot be

Reconciled With the Decision of the

Second Circuit Court of Appeals in

United States v. Torres, 901 F.2d 205

te Cer cceeeeeeenecocecssccses 36

CONCLUSION .......-. i coccce 17

iii

TABLE OF AUTHORITIES

Case Page

Kring v. Missouri,

Bee Wes Bee CARES) coosecseacer eos ka

Miller v. Florida,

See Wis Gee CAT) ce scccicscese 8

Platt v. Minnesota Mining

& Mfg. Co.,

Bee Wats Mee CADGSD cecccscsesees AF

United States v. Kramer,

955 U.S. 479 (7th Cir. 1992) .... %

United States v. Torres,

901 F.2d 205 (2d Cir. 1990) ..... 14,

15, 16

Weaver v. Grahan,

eee Sn. ee ED a a6 64s 68 eke S 7. ae

OTHER AUTHORITIES:

2a U.8.6. Bese SESE) «ccccssevce Passim

21 U.S.C. Section 848(d)(2) ....... 6

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

No. 92-177

BENJAMIN BARRY KRAMER and

RANDY THOMAS LANIER,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

ON JOINT PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

JOINT REPLY TO THE BRIEF FOR THE

UNITED STATES IN OPPOSITION

Pursuant to Supreme Court Rule

15.6, petitioners Benjamin Barry Kramer and

Randy Thomas Lanier, through their

undersigned counsel, respectfully submit

1

a

initia

this brief in reply to the arguments raised

in the government's brief in opposition to

the petition for certiorari.

ARGUMENT

I. The Instructions Given the Jury in this

Case did not Require the Jury to Find that

the Petitioners Acted as the "Principal

Administrators" Over a Continuing Series of

Drug Offenses After the Effective Date of 21

U.S.C. Section 848(b) in Order to Return to

a Verdict of Guilty on the CCE Count in the

Indictment.

In our petition for certiorari, we

submitted that the instructions given to the

jury in this case permitted the jury to

return a verdict against the petitioners on

Count 1 of the Indictment in violation of

the constitutional ban on ex post facto law.

We posed this argument on two levels:

First, we submitted that the district

court's instructions on the CCE count did

not require the jury to find that the

petitioners had acted as the "principal

administrator, organizer, or leader" (or

2

"principal administrator,” for short) over

even a single narcotics offense after the

effective date of 21 U.S.C. Section 848(b).

Second, we submitted that to convict the

petitioners on the CCE count, the jury was

required to look to the petitioners’ pre-

enactment conduct to find at least one of

the narcotics offenses constituting the

series of offenses over which the

petitioners functioned as "principal

administrator.” (See Petition for

Certiorari at 23-31).

In its brief in opposition, the

government does not endeavor to show that,

on either level, the issue is not worthy of

a grant of certiorari. The government does

attempt to meet the first level of our

argument by submitting that the jury

probably understood that it had to find that

the petitioners acted as supervisors over at

least one narcotics felony after Section

848(b) became law, but the government's

citations to the record do not support its

arguments. As to the second level of our

argument, the government has not responded

at all.

A.

Under a plain-meaning reading, the

district court's instruction permitted the

jury to return a guilty verdict on the CCE

count if the jury found that the petitioners

had at one time functioned as "principal

administrators" of a criminal enterprise,

that this enterprise had continued past the

effective date of Section 848(b), October

27, 1986, and that, after this date, either

the petitioners had committed a _ single

narcotics felony or "the enterprise” had

grossed in excess of $10 million. Put

another way, the district court's

instruction did not require the jury to find

that the petitioners had continued to

ee

function as “principal administrators" after

21 U.S.C. Section 848(b) became law.

In its brief in response, the

government concedes that the instructions

given the jury were “ambiguous” (Brief in

Response at 9), but argues nonetheless that

the jury must have understood that it had to

find that the petitioners continued to

function as “principal administrators" after

the effective date of Section 848(b).* In

support of this argument, the government

‘ At Page 10 of its Brief in Opposition,

the government also argues, as it argued

below (see Appellate Brief of the United

States at 49), that the petitioners have

somehow waived any argument based on the

plain meaning of the jury instructions

through their statements during closing

argument to the jury. As we noted in the

court below (see Appellant's Reply Brief at

10-11), the government has never cited a

single authority for the proposition that a

party's attempts to give a palliative

interpretation during closing argument to 4

patently unconstitutional jury instruction

can act as a waiver of its objections to

that instruction, particularly where the

party has proffered a jury instruction of

its own that comports with the Constitution.

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relies on citations to the closing arguments

of counsel. According to the government,

both prosecution and defense counsel

interpreted the district court's jury

instructions to require a finding that the

petitioners functioned as “principal

administrators” after October 27, 1986, and

conveyed that understanding to the jury

during closing argument. But the

government's citations to the record do not

support this conclusion. Instead, those

record citations disclose that counsel

argued that the instructions required the

jury to find that the petitioners "committed

acts" after the effective date of Section

848(b) (Brief in Opposition at 11 n.4

(quoting Tr. 10,379)), or that the

petitioners “were involved after that period

of time” (Ibid. (quoting Tr. 10, 379)), or

that their “specific activities" were to be

"“measure[d]" after that date (Brief in

Opposition at 10 (quoting Tr. 10,230)), or

that “the enterprise” (whatever that term

may have meant in this context’) itself

continued past that date. (Id. at 10

(quoting Tr. 10,115)).

It appears to be the government's

position that the ex post facto clause is

not offended so long as the jury understood

it had to find that the petitioners did

something -- anything -- after the date on

which 21 U.S.C. Section 848(b) became the

law of the land. This is not, however, what

the ex post facto clause requires. It

requires, at the very ieast, a finding that

* As observed in our petition for

certiorari, an “enterprise” is not an

essential element of a Section 848(b)

offense; nor is the term "enterprise"

defined by the statute. (See Petition for

Certiorari at 24 & n.7). Instead, the term

is used as ae short-hand form for the

"continuing series of violations" of the

narcotics laws that is the sine qua non of

a CCE offense. See 21 U.S.C. Section

848(d)(2) (West 1987).

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the petitioners engaged in the precise

conduct for which Congress altered the legal

consequences by enactment of new

legislation. See Miller v. Florida, 482

U.S. 423, 430 (1987); Weaver v. Graham, 450

U.S. 24, 29, 31 (1981).

B.

The conduct that fits’ that

description in this case concerns whether

the petitioners acted as the “principal

administrators" over a continuing series of

drug violations. While the government has

attempted to justify the decision below by

showing that the jury might have understood

that it had to find that the petitioners

acted as “principal administrators" over one

drug felony after Section 848(b)'s effective

date, the government has not attempted to

show that this alone would square the

decision below with the requirements of the

ex post facto clause, much less to challenge

site

the merits of a grant of certiorari on this

issue.

As the straightforward statutory

analysis in our petition for certiorari

demonstrated, a person can be held liable

under the 1986 version of Section 848(b)

only if that person functioned as 4a

"principal administrator" over a sufficient

number of drug violations to constitute a

"series." (See Petition for Certiorari at

19, 24, 25-26). Whether that number is two

(as the Seventh Circuit stated below) or

three (as every other circuit court to

consider the issue has held), the jury could

not have found that the petitioners

functioned in this role after October 27,

1986, since, as the court below found, only

one drug transaction included within the

series charged occurred after that date, the

so-called "San Francisco load", which took

Place some two weeks after Section 848(b)

became law. See United States v. Kramer,

955 U.S. 479, 482-83, 486 (7th Cir. 1992).

Since six of the seven charged

drug transactions occurred before the

effective date of Section 848(b), to find

that the petitioners had acted as_ the

“principal administrators" over a sufficient

number of drug transactions to constitute a

"series" -- the only element of a CCE

offense that makes it a "continuing" offense

-- the jury was forced to consider whether

the petitioners played this role in at least

one of the transactions occurring before

Section 848(b) went into effect on October

27, 1986. Before that date, however, the

role of "principal administrator" did not

exist. That term was not included within

the prior version of the CCE statute, and

conduct that fit that description was

without any independent legal significance

until the 1986 version of Section 848(b)

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became law. Yet the jury had to find such

pre-enactment conduct by the petitioners to

return a guilty verdict on the CCE count in

this case. It is this change in the legal

significance of the petitioners' pre-

enactment conduct that makes this case truly

worthy of a grant of certiorari.

Cc.

As the government observes in its

brief, the petitioners maintained in the

courts below that the enactment of 21 U.S.C.

Section 848(b) on October 27, 1986, created

a new substantive offense rather than a

sentencing enhancement provision for an

existing offense. But whether Section

848(b) is a new substantive offense or a

sentencing enhancement provision,

petitioners' convictions violated the ex

post facto clause, since that clause

requires, at a minimum, that new conduct

proscribed by Congress (be it a new element

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of a substantive offense or a new factor in

a sentencing enhancement scheme) be proved

by evidence of post effective date acts by

the defendant.

What the substantive

offense/sentencing enhancement distinction

does bear upon is the question whether venue

was laid in the Southern District of

Illinois consistent with the ex post facto

guarantee. The government observes that the

petitioners have cited no precedent

requiring that venue be established solely

by an act in the district post dating the

effective date of a new penal statute. It

is equally true, however, that the

government has cited no authority for its

argument that venue may be established in a

district by proof of an act that pre-dates

by years the effective date of the statute

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which makes that act illegal.* In any event,

it would seem that this dearth of authority

on either side, when combined with

Congress's penchant for enacting new penal

laws with each passing session, makes this

issue particularly worthy of certiorari

being granted.

> The government also argues that

subjecting venue requirements to ex post

facto analysis would not serve the policy

interests of either. (Brief in Opposition

at 13). This argument appears at odds with

the construction given the ex post facto

Clause by this Court, which has applied the

clause to the abrogation of lesser included

offenses, see Kring v. Missouri, 107 U.S.

221 (1883), to jury composition, see

Thompson, Utah, 170 U.S. 343 (1895), and to

parole requirements, see Weaver v. Grahan,

450 U.S. 24 (1981). Furthermore, the policy

behind venue provisions acknowledged by the

government -- to "safeguard[] against the

unfairness and hardship involved when an

accused is prosecuted in a remote place”

(Brief in Opposition at 13 (quoting Platt v.

Minnesota Mining & Mfg. Co., 376 U.S. 240,

245 (1964))) -- would appear to be

implicated whenever a defendant is called to

answer in a remote jurisdiction for an act

done years before that particular act was

proscribed by Congress.

13

eo

Il. The Decision Below Cannot be Reconciled

with the Decision of the Second Circuit

Court of Appeals in United States v. Torres,

901 F.2d 205 (2d Cir. 1990).

The Second Circuit's decision in

United States v. Torres, 901 F.2d 205 (2d

Cir. 1990), conflicts directly with the

Seventh Circuit's decision in this case, not

just on the issue whether Section 848(b) is

a substantive offense as opposed to a

sentencing enhancement provision, but on the

question of the application of the ex post

facto clause to the “principal

administrator" element of an 848(b) offense

as well. In its brief in opposition, the

government attempts to distinguish the cases

factually; but closer scrutiny reveals them

to be indistinguishable.

As the government observes, Torres

involved a "straddle offense," in that the

defendants were accused of being the

“principal administrators" over a continuing

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series of drug offense during a one year

period that straddled the effective date of

Section 848(b). This case, too, however,

was a "straddle offense," since the

Indictment charged that the series of drug

violations began well before Section

848(b)'s effective date and continued

thereafter. Indeed, all but four months of

the seven year period alleged in the

Indictment (and all but one of the seven

charged drug offenses) occurred before the

1986 version of Section 848(b) became law.

Here, just as in Torres, the

district court's instructions permitted the

jury to rely on both the pre-enactment and

the post-enactment drug violations in

determining whether the defendants had

functioned as "principal administrators."

If anything, the ex post facto violation is

more compelling here. In Torres, the

government established that a sufficient

15

a

number of drug offenses had occurred after

Section 848(b)'s effective date to

constitute a "series." United States v.

Torres, 901 F.2d at 229. The only problem

was that the jury was not instructed that it

had to rely solely on these post-effective

date drug violations in determining whether

the defendant had been the "principal

administrators." Id.

Here, it is uncontested that only

one transaction that was part of the series

alleged occurred after the effective date of

Section 848(b). Consequently, the jury

could find a "series" of offenses only if it

considered drug violations that occurred

before October 27, 1986, in determining

whether the petitioners had functioned in

the role proscribed by Congress as of that

date, “principal administrator." In other

words, a properly instructed jury would have

had to have concluded that there was an

16

insufficient number of offenses after

October 27, 1986, to satisfy that which the

petitioners, as "principals," were accused

of actually "administering" -- a "continuing

series" of violations of the drug laws.

CONCLUSION

Based on the _ foregoing, 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.

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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

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