# Reply Brief — Fischer v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1046%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 998

## Text

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.

5

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).

7

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)

10

-

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

11

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

12

_ |

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

14

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.

17

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

18

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1046%3A3. Public record. Not legal advice.