Petition for Writ of Certiorari — Robinson v. United States

}

IN THE .

SUPREME COURT OF THE UNITED ST

OCTOBER TERM, 1992

No.

PAUL E. ROBINSON,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

—

Supreme Court, U.S.

FILED

JUL 23 1992

FFICS OF THE CLERK

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

ROBERT W. RITCHIE

Counsel of Record

DAVID M. ELDRIDGE

RITCHIE, FELS & DILLARD,

606 W. Main Avenue

Post Office Box 1126

Knoxville, TN 37901-1126

(615) 637-0661

Attorneys for Petitioner

P.C.

QUESTIONS PRESENTED

I. Whether evidence of uncharged

misconduct is automatically admissible

under Federal Rule of Evidence 404(b) to

prove intent when intent is an element of

the crime charged but is not a disputed

factual issue.

Ii. Whether the application of Guideline

Section 3Bl.1 to sentence an individual to

an additional period of incarceration based

upon the finding by a preponderance of the

evidence that he was an organizer or leader

of criminal activity violates that

individual's rights to due process under

the Fifth Amendment.

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 judgiert is sought to be reviewed in

this case:

The United States Government

Paul E. Robinson

Daniel W. Robinson

Dillard W. Woods

Edward Alvarez and

Serafin Hernandez’

* Mr. Alvarez and Mr. Hernandez were not

tried together with Mr. Robinson.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .....--++++eeeeeees i

LIST OF ALL PARTIES TO

THE PROCEEDINGS BELOW .......++++-- ii

TABLE OF CONTENTS ....--2 eee ee ee eeeces iii

TABLE OF AUTHORITIES ....--+-+++eeeee- V

OPINION BELOW 2... ee eee ee ee ee ee eee ees 2

SUPREME COURT JURISDICTION -........-- 2

CONSTITUTIONAL: AND STATUTORY

PROVISIONS INVOLVED .....-+--+-++eee- 2

STATEMENT OF THE CASE ..6..2--+-++ee06- 2

REASONS FOR GRANTING THE WRIT ......-. 10

I. THE SEVENTH CIRCUIT'S RULE

THAT, WHERE THE CRIME INCLUDES

SPECIFIC INTENT AS AN ELEMENT,

OTHER-CRIMES EVIDENCE IS

ADMISSIBLE UNDER RULE 404(b)

EVEN THOUGH INTENT IS NOT IN

DISPUTE IS IN DIRECT CONFLICT

WITH THE RULE FOLLOWED IN

OTHER CIRCUIT COURTS OF APPEAL

AND IS INCOMPATIBLE WITH

IMPORTANT PUBLIC POLICY

CONSIDERATIONS .....--22eeeeeees 10

A. The Conflict in the Circuits ... 10

Il.

iv

The Rigid Consequences of the

Seventh Circuit's Rule:

Talismanic Analysis with no

Relation to Logic ......-seeeeee 14

THE APPLICATION OF SENTENCING

GUIDELINE 3Bl.1(a) TO ENHANCE

A DEFENDANT'S SENTENCE ON

THE BASIS THAT THE DEFENDANT

WAS AN ORGANIZER OR LEADER

OF A CRIMINAL ACTIVITY

WITHOUT PROOF OF THAT FACT

BEYOND A REASONABLE DOUBT

IS IN CONFLICT WITH DUE

PROCESS PRINCIPLES ARTICULATED

IN IN RE WINSHIP, 397 U.S. 357

(1970), MULLANEY V. WILBUR,

421 U.S. 684 (1975) AND

THEIR PROGENY .....cccccccccces 20

Winship, Mullaney, Patterson

G MoMELEON .ccece Scasdetewes ese BO

Sentencing Guideline 3Bl.1(a)

is not Merely a Sentencing

Enhancement Factor Which

Co-Exists With the Charged

Elements of the Felonies to

Which it Applies .......cceceee 28

Sentencing Guideline 3Bl.1

Alters the Maximum Penalty for

the Crime Committed and Due

Process Requires Proof

Beyond a Reasonable Doubt ..... a2

CONCLUSION .....-e.ceee piestscess oes ae

APPENDIX ..cccccccccnscccceveccrers la

Vv

TABLE OF AUTHORITIES

PAGE

I. CASES:

In Re Winship,

S67 Ui. BSF Laser 6s one ceceneneas Passim

McMillan v. Pennsylvania,

S77 U.8. GS CLAadee) «¥en. 400-050 6 ees Passim

Michelson v. United States,

355 U.S. GOS B9SGS) acc scocesvavess iL?

Miller v. Florida,

462 U8. Gee Ca9Gl ) weaves essvsane 28

Mullaney v. Wilbur,

Gan Us Gee Caer a) ese etaceneaess Passim

Patterson v. New York,

G32 U8. 197 CAST) ceacvcvvessees 23

United States v. Adams,

898 F.2d 1310

(St GES. TOSS). acviaseccacevasees 12

United States v. Ayers,

924 F.2d 1468

(9th Cis. A9GE) « kcweniecscsseness 12

United States v. Barnerd,

887 F.2d 841

(EG Cae, TOO) 6 vows ens eat bene 26

United States v. Beechun,

582 F.2d 898

(Sth CES. AGFE) we cee sec iaceeeces 11

vi

United States v. Blanco,

888 F.2d 907

(lst Cir. 1989) 2c ee eeeeenececss 26

United States v. Burke,

88 F.2d 862

(D.C. Cir. 1989) cere eeeeeeeces 26

United States v. Castro,

908 F.2d 85

(6th Cir. 1990) ...c ee eeeeeececces 26

United States v. Chaimson,

760 F.2d 798

(7th Cir. 1985) ...ceeeeeeeeeeeces ia;

United States v. Ferrer-CruzZ,

899 F.2d 135

(lst Cir. 1990) ....ce eee eeeeeeces 13

United States v. Guerra,

888 F.2d 247

(2G Cir. 1989) wncccccsscscecesnces 26

United States v. Harrod,

856 F.2d 996

(7th Cir. 1988) ...ceee weer eeeeces 14

United States v. Hernandez,

896 F.2d 513

(Lith Cir. 1990) ..cceeceecccceees 13

United States v. Kikumura,

918 F.2d 1084

(3rd Cir. 1990) ..--e eee eee eeeees 27

United States v. Kramer,

955 F.2d 479

(7th Cir. 1992) w~.ccccccceecceeees 18

vil

United States v. Lennartz,

948 F.2d 363

(7tm Cis... T9PL) seve sees

United States v. Manafzadeh

592 F.2d 81

(26 Cis. 2973) «vw 00s aes

United States v. Matthews,

942 F.2d 779

(10th Cir. 1991) wcssess

United States v. McDowell,

888 F.2d 285

(Sra Cir. 1969) «cccvcees

United States v. O'Connor,

580 F.2d 38

e Bhs ae. ys 2 ere a ee

United States v. Oppon,

863 F.2d 141

(ist Cir. 1968) ...cseoee

United States v. Ortiz,

857 F.2d 900

(26 Cit. LISS) ce wcacnees

United States v. Rafferty,

911 F.2d 227

(9th Cir. L990) scssccecs

United States v. Ring,

513 F.2d 1001

(6th Cir. 1975) .ccccoses

United States v. Robinson,

Nos. 89-2680, 89-3687

89-3626

(7th Cir. Feb. 27, 1992)

,

United States v. ROSS,

905 F.2d 1051

(Fth Cit. 1990) .s040snceseceesees 26

United States v. Shackleford,

738 F.2d 776

(Fth, Cir... 1964) e200 se ese es eeeess 16

United States v. Terzado-Madruga,

88 F.2d 1099

OG ee © eee by 0 Re eid 26

United States v. Urrego-Liinares,

879 F.2d 1234

(Ath Cir. 1989) «ss cccesesscesens 26

United States v. Williams,

577 F.2d 188

C38 - Cit: T97E) sete nee veesenes il

II. STATUTES

S86: 6.0. DD 2 oi wc wee cect e eee es eres 6

21 U.S.C. §§ 841(a)(1) «--- eee ee ees 6

(oe ee a eee ee eee ee 5

23 2.650. 6 -OG6 chs cwsde see sceweesene 29

91 U.S.C. §& B46( Ed) 2 cee caves ecscses Passim

28 U.S.C. § 994(1) occ eeeeeeeerereees 29, 30

28 U.S.C: § 994(1)(3) ccccccevcoses 30

28 U.S.C. § 1254(1) cece cwccccrces 2

ix

IIt. OTHER AUTHORITIES

Federal Rules of Evidence 403 ..... se

Federal Rules of Evidence 404(b) .. Passim

Patterson,

Evidence of Prior Bad Acts:

Admissibility under the Federal Rules

38 Baylor L.Rev. 331 (1986) ..... 16,

Imwinkelried, E.,

The Need to Amend Federal Rule

of Evidence 404(b): The Threat

to the Future of the Federal

Rules of Evidence,

30 Villanova L.Rev. 1465 (1985)... 17

IV. CONSTITUTIONAL PROVISION

U.S. Constitution,

eerie Sk oo 5 4 0 ho 6 te oe 8 Oe eo ee eS ‘we

17

20

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

PAUL E. ROBINSON,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT

Petitioner, Paul E. Robinson,

respectfully prays 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 February 27, 1992.

OPINIONS BELOW

The opinion of the court of

appeals, United States v. Robinson, Nos. 89-

3680, 89-3687, and 89-3626 (7th Cir. Feb.

27, 1992), is unpublished and is reproduced

in the Appendix at 1la-44a.

JURISDICTION

The judgment of the court of

appeals was entered on February 27, 1992.

Mr. Robinson timely filed a petition for

rehearing with suggestion for rehearing en

banc which was denied on April 24, 1992.

(App. at 46a). The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the United States

Constitution provides:

No person shall be held to answer

for a capital, or otherwise infamous crime,

unless on a presentment or indictment of a

Grand Jury, except in cases arising in the

land or naval forces, or in the Militia,

when in actual service in time of War or

public danger; nor shall any person be

subject for the same offense to be twice put

2

in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a

witness against himself, nor be deprived of

life, liberty, or property, without due

process of law; nor shall private property

be taken for public. use, without just

compensation.

Rule 404 of the Federal Rules of Evidence

provides, in pertinent part:

(b) Other crimes, wrongs or acts.

Evidence of other crimes, wrongs, Or acts is

not admissible to prove the character of a

person in order to show action in conformity

therewith. It may, however, be admissible

for other purposes, such as proof of motive,

opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake

or accident.

Section 3B1.1 of the United States

Sentencing Commission Sentencing Guidelines

provides:

Based on the defendant's role in

the offense, increase the offense level as

follows:

(a) If the defendant was an

organizer or leader of a criminal activity

that involved five or more participants or

was otherwise extensive, increase by 4

levels.

(b) If the defendant was a manager

or supervisor (but not an organizer or

leader) and the criminal activity involved

five or more participants or was otherwise

extensive, increase by 3 levels.

(c) If the defer

organizer, leader,

manager

in any criminal activity

Gescribed in (a) or (b),

levels.

idant was

Or supervisor

other

increase

an

than

by 2

STATEMENT OF THE CASE

On May 17, 1989, the petitioner,

Paul E. Robinson, was charged, together with

Daniel W. Robinson, Dillard W. Woods, Edward

Alvarez and Serafin Hernandez in a four

count superseding indictment returned in the

United States District Court for the

Southern District of Illinois.’ Count 1

charged that from “in or about approximately

1988, and continuing thereafter, up to and

including in or about May of 1988," Paul

Robinson and the other defendants conspired

to distribute and possess with intent to

distribute five (5) kilograms or more of

cocaine in violation of 21 U.S.C. § 846.

(App. 2a - 3a). Over Petitioner s

The original indictment was returned

on April 18, 1988.

2 Counts 2 and 3 charged that on or

about March 14, 1988 and on or about April

12, 1988, Paul Robinson and the other

defendants possessed with intent to

distribute five (5) kilograms or more of

cocaine in violation of 2i 606. S.C §

5

strenuous objection, during trial, the

Government's two principal witnesses

testified that Paul Robinson directed a

marijuana taportation and distribution

operation during the 1970's that transported

large amounts of marijuana from Florida to

the St. Louis area.

The district court admitted the

marijuana conspiracy evidence under Rule

404(b) of the Federal Rules of Evidence to

establish, inter alia, petitioner's intent

with respect to the charged crime and so

instructed the jury.’

841(a)(1) and 18 U.S.C. § 2. Count 4

charged that on or about March 13-14, 1988,

Paul Robinson and the other defendants aided

and abetted or caused interstate travel to

facilitate unlawful activity in violation of

21 U.S.C. §§ 841(a)(1) and 856 and 18 U.S.C.

§§ 1952.

> The district court instructed the jury

that it covld consider the evidence of

petitioner's participation in the marijuana

smuggling and distribution on the issues of

plan, preparation, knowledge and intent.

6

The district court sentenced Mr.

Robinson to a total of 360 months

imprisonment after applying Guideline

Section 3B1.1(a) and finding by a

preponderance of the evidence that Mr.

Robinson was an organizer or leader of

criminal activity involving five or more

persons.

On appeal, the Seventh Circuit

applied its rule that where specific intent

is an element of the crime charged, evidence

of other acts may be introduced to establish

that intent even if intent is undisputed by

the defendant. (App. at 30a).

The Court of Appeals therefore concluded

that the marijuana evidence was directed

toward establishing a matter in issue other

then the defendant's propensity to commit

the crime charged.‘

On appeal, petitioner also

challenged the application of Sentencing

Guideline 3Bl.1(a) to increase his sentence

four levels for being an organizer or leader

of criminal activity without proof of that

fact beyond a reasonable doubt as 4a

violation of his rights to due process under

the Fifth Amendment.

The application of this guideline raised

petitioner's offense level from 36 to 40 and

therefore required the court to add to his

sentence, increasing it from a possible 19

to 24 years to a range of 30 years to life.

The Seventh Circuit did not address

Mr. Robinson's constitutional arguments with

respect to the manner in which this

* The Court of Appeals applied a four

part test governing the admission of

uncharged criminal conduct citing United

States v. Lennartz, 948 F.2d 363, 366 (7th

Cir. 1991). (App. at 29a).

8

guideline was applied.

REASONS FOR GRANTING THE WRIT

i. THE SEVENTH CIRCUIT'S RULE THAT, WHERE

THE CRIME INCLUDES SPECIFIC INTENT AS AN

ELEMENT, OTHER-CRIMES EVIDENCE IS ADMISSIBLE

UNDER RULE 404(b) EVEN THOUGH INTENT IS NOT

IN DISPUTE IS IN DIRECT CONFLICT WITH THE

RULE FOLLOWED IN OTHER CIRCUIT COURTS OF

APPEAL AND IS INCOMPATIBLE WITH IMPORTANT

CONSTITUTIONAL AND PUBLIC POLICY

CONSIDERATIONS.

A. The Conflict in the Circuits

Federal Rule of Evidence 404(b)

deals with a specific aspect of the general

rule of forbidding character evidence to

establish a criminal defendant's propensity

to act in a given manner:

Other crimes, wrongs or acts.

Evidence of other crimes, wrongs,

Or acts is not admissible to prove

the character of a person in order

to show that he acted in conformity

therewith. It may, however, be

admissible for other purposes, such

as proof of motive, opportunity,

intent, preparation, plan,

knowledge, identity or absence of

mistake or accident.

Rule 404(b), Fed.R.Evid.

A conflict has arisen between the

circuits over the admissibility of other-

10

crimes evidence pursuant to Rule 404(b)

where specific intent is an element of the

crime charged but is not in dispute in the

case at bar.

The Second, Fifth and Sixth

Circuits have held flatly that other-crimes

evidence is inadmissible on the issue of

intent unless it is actually in dispute.

See, e.g., United States v. Manafzadeh, 592

F.2@ 81, 87 (28° Cis. 197972 United States

v. O'Connor, 580 F.2d 38, 40 (2d Cir. 1978);

United States v. Williams, 577 F.2d 188, 191

(ze Cir. ?}, cert. denied, 439 U.S. 868

(1978)°; United States v. Beechum, 582 F.2d

A panel of the Second Circuit has

apparently softened the bright line rule

articulated in its previous decisions. In

United States v. Ortiz, 857 F.2d 900 (2d

Cir. 1988), cert. denied, 489 U.S. 1070

(1989), the Court held that a defendant may

preclude admission of other act evidence on

the issue of intent by expressing a decision

not to dispute that issue with sufficient

clarity so that the court will be justified:

(1) in sustaining an objection to any cross-

examination or jury argument that raises the

issue; and (2) in instructing the jury that

11

998, 900 (5th Cir. 1978) (en banc), cert

denied, 440 U.S. 920 (1974); United States

v. Ring, 513 F.2d 1001, 1009 (6th Cir.

1975).

In sharp contrast, the Seventh, Eighth,

and Ninth circuits have held that, even if

intent is not seriously disputed by the

defendant, in those instances where specific

intent is an essential element of the crime

charged, other-crimes evidence relevant to

proof of intent is automatically admissible

unless it fails to meet the standards of

Rule 403 of the Federal Rules of Evidence.

See, e.g., United States v. Chaimson, 760

F.2d 798, 808 (7th Cir. 1985); United States

v. Adams, 898 F.2d 1310, 1312, (8th Cir.

1989); United States v. Ayers, 924 F.2d

if they find all the other elements

established beyond a reasonable doubt, then

they must find against the defendant because

intent is not in dispute. Id. at 904.

12

1468, 1473, (9th Cir. 1991).

Other circuits take a middle ground

with the adoption of a rule that requires a

defendant to take some affirmative action to

withdraw the issue of his or her intent from

the case before other crimes evidence is

excluded as irrelevant.

In United States v. Hernandez, 896

F.2d 513 (11th Cir.), cert. denied, U«~S.

, 111 S.ct. 159 (1990), the Eleventh

Circuit held that intent is a material issue

in a conspiracy case unless the defendant

affirmatively withdraws that issue from the

case. Id. at 522. The Fifth Circuit in

United States v. Ferrer-Cruz, 899 F.2d 135

(Ame. -Gakts 1990) held that while the

defendant's failure to argue lack of intent

does not remove the issue, a defendant may

remove intent as an issue by telling the

court with sufficient clarity that he will

not dispute that issue.

13

B. The Rigid Consequences of the

Seventh Circuit's Rule: Talismanic

Analysis With No Relation to Logic

The Seventh Circuit takes a rigid

approach in which evidence of other crimes

is automatically admissible on the issue of

intent, subject only to the provisions of

Rule 403 of the Federal Rules of Evidence.

Our analysis indicates that when the

crime charged is one requiring a

showing of specific intent, "intent"

need not be disputed by _ the

defendant before Rule 404(b)

evidence can be introduced. In

specific intent crimes, intent is an

essential and material element to be

proven, and thus necessarily becomes

a matter in issue.

United States v. Harrod, 856 F.2d 996, 1000

(7th Cir. 1988).

Relevance to a matter in issue is

fundamental to any logical examination of

the admissibility of other crimes evidence.

As Chief Justice Rehnquist wrote in

Huddleston v. United States, "(e]vidence is

14

admissible only if it is relevant.

‘Relevance is not an inherent characteristic

of any item of evidence but exists only as

a relation between an item of evidence and

a matter properly provable in the case.'"

485 U.S. 681, 689 (1988) (quoting Advisory

Committee's Notes on Fed.R.Evid. 401, 28

U.S.C. App. at 688).

The result of the bright-line rule

adopted by the Seventh Circuit is that it

makes relevance an inherent characteristic

of other-crimes conduct whenever a specific

intent crime is charged. No evidence has

relevance as an inherent characteristic --

relevance is not automatic. As Judge Cudahy

wrote in his concurring opinion in Chaimson:

[T]he rules should not be so understood

as to make the admissibility of other-

crimes evidence automatic where the

crime is one of specific intent... .-

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.

15

760 F.2d at 813 (Cudahy, J. concurring).

(emphasis in original).

Courts have long recognized the

special dangers posed by other-crimes

evidence. Patterson, Evidence of Prior Bad

Acts: Admissibility Under the Federal

Rules, 38 Baylor L.Rev. 331, 333 (1986), at

333. The likelihood of prejudice is

extreme. "TE]manations from evidence of a

defendant's bad acts are almost always

suggestive of a defendant's propensity to

commit other bad or criminal acts and tend

to impugn his or her credibility." United

States v. Shackleford, 738 F.2d 776, 779

(7th Cir. 1984).

Jurors may return a verdict of

guilty for reasons other than finding all

the elements of the alleged crime beyond a

reasonable doubt. Alternatively, a jury may

conclude that the accused, having committed

other crimes or wrongs, is a “bad" person

16

who deserves punishment and incarceration

even though reasonable doubt exits with

respect to the crime charged. Patterson,

Evidence of Prior Bad Acts; supra, at 332.

As part of the Chicago Jury

Project, researchers found that conviction

rates were significantly greater after a

jury learned that’ the Gefendant had a

criminal record or had been charged even

with a minor crime. E. Imwinkelried, The

Need to Amend _ Federal Rule of Evidence

404(b): The Threat to the Future of the

Federal Rules of Evidence, 30 Villanova L.

Rev. 1465, 1487 (1985).

Such results are impermissible in our

system of justice where ini is a legal

presumption of innocence until proven guilty

_beyond a reasonable doubt. Michelson v.

United States, 335 U.S. at 469, 476-477

(1948).

In the instant case, highly

17

prejudicial evidence of Mr. Robinson's roie

in a dissimilar and distinct marijuana

smuggling and distribution operation was

found to be automatically directed towards

a matter in issue other than his propensity

to commit the charged crime solely because

his specific intent was an element of the

offense. (App. at 30a). The mere fact

that a crime includes specific intent as an

element does not put that matter in issue.

The Seventh Circuit has carved out an

exception for specific intent offenses that

has effectively swallowed the rule that

other crimes evidence is not admissible on

the issue of intent unless intent is

disputed or called into question. United

States v. Kramer, 955 F.2d 479, 492 (7th

Cir. 1992) (Cudahy, J. concurring).

This "automatically in issue"

exception threatens to destroy the viability

of Rule 404(b). Intent is commonly in issue

18

as an essential element of a crime. If the

mere existence of this element justifies the

admission of other-crimes evidence, the

general bar against propensity evidence has

been destroyed. United States v. Oppon, 863

F.2d 141, 149 (lst Cir. 1988) (Coffin, J.

concurring) (emphasis added).

The Seventh ee ak bo

"automatically in issue" rule worked to

petitioner's extreme disadvantage in that he

could not take any measures that might have

removed that issue from contention and thus

precluded admission of the devastating prior

crimes evidence. Such would not have been

the case in other circuits. See supra at

li, 13. The circuits are in clear conflict

on this question and it is one that will

recur in many cases. Accordingly, the issue

presented is one which calls out for uniform

treatment in the federal courts -- a result

that only this court can achieve.

19

For all these reasons, petitioners

respectfully request this court to grant his

petition for certiorari and resolve this

conflict among the courts of appeal.

II. THE APPLICATION OF SENTENCING GUIDELINE

3B1l.1(a) TO ENHANCE A DEFENDANT'S SENTENCE

ON THE BASIS. THAT THE DEFENDANT WAS AN

ORGANIZER OR LEADER OF A CRIMINAL ACTIVITY

WITHOUT PROOF OF THAT FACT BEYOND A

REASONABLE DOUBT IS IN CONFLICT WITH DUE

PROCESS PRINCIPLES ARTICULATED IN IN RE

WINSHIP, 397 U.S. 357 (1970), MULLANEY V.

WILBUR, 442i VU.&. 684 (1975) AND’ THEIR

PROGENY

A. Winship, Mullaney, Patterson & McMillan

The Fifth Amendment to the United

States Constitution provides, in part, that

"[n]o person shall be .. . deprived of

life, liberty, or property, without due

. process of law. ..." U.S. Const. art. V.

This Court has made abundantly

clear that due process under the Fifth

Amendment includes the reasonable-doubt

standard of proof as the bedrock of the

American criminal justice system. In In Re

20

Winship, 397 U.S. 357 (1970), the Court

fhe standard provides concrete substance

for the presumption of innocence - that

bedrock "axiomatic and elementary"

principle whose “enforcement lies at the

foundation of the administration of our

criminal law.”

Proof beyond a reasonable doubt

dates from the early days of our nation and

reflects a profound judgment about the way

the law should be enforced and justice

administered. Id. at 362, 263. Winship

held that the Due Process Clause protects an

accused against conviction and punishment

except by proof beyond a reasonable doubt of

all facts necessary to constitute the crime

for which punishment is imposed. Id. at

364.

In Mullaney v. Wilbur, 421 U.S. 684

(1975), the State of Maine contended that

because the issue in question did not arise

21

until the fact finder had reached a

conclusion that the defendant was guilty of

at least manslaughter, the defendant's

"critical interests in liberty and

reputation are no longer of concern since

irrespective of the presence or absence of

this factor he was likely to lose his

liberty and certain to be stigmatized." Id.

at 697-98. In response, the Court made it

clear that whenever a statutory scheme

concerned itself with not only guilt or

innocence, but also with the degree of

criminal culpability, the fact upon which

the higher degree of culpability turned must

be established beyond a reasonable doubt.

Id. at 698.

This Court has since refined the

principles adopted in Winship and Mullaney.

In McMillan v. Pennsylvania, 477 U.S. 85

(1986), the Court noted that "the reasonable

doubt standard has always been dependent

22

upon how a state defines the offense

but there are constitutional limits to the

State's power in this regard; in certain

limited circumstances Winship's reasonable-

doubt requirement applies to facts not

formally identified as elements of the

offense charged." Id. at 85, 86 (citing

Patterson v. New York, 432 U.S. 197; san, Ms

12 (1977)).

In McMillan, the court upheld a

Pennsylvania statute which provided that

anyone convicted of certain felonies would

be subject to a minimum five year sentence

if the sentencing judge concluded, by 4a

preponderance of the evidence, that the

defendant "'visibly possessed a firearm'

during commission of the offense." Id. at

81. The Court made clear that

Pennsylvania's statute was not

unconstitutional because it

neither alters the maximum penalty

for the crime committed nor creates

23

a separate offense calling for a

separate penalty; it operates solely

to limit the sentencing court's

discretion in selecting a penalty

within the range already available

to it.

Id. at 89.

Moreover, the determination upon

which the minimum five year sentence rested

was never specifically segregated from other

elements of a judges' sentencing discretion

for the purpose of establishing a fixed or

"add on" sentence. The statute merely

required that where this factor was found to

co-exist with the charged elements of the

felonies to which it applied, the weight to

be given to all the sentencing factors to be

considered is not to be less than a five

year term. Id. at 88. "The Pennsylvania

Legislature did not change the definition of

any existing offense. It simply took one

factor that has always been considered by

sentencing courts to bear on punishment -

the instrumentality used in committing a

violent felony - and indicated the precise

weight to be given that factor if the

instrumentality is a firearm." Id. at 89-90.

Chief Justice Rehnquist noted that

the Court had never attempted to define

precisely the constitutional limits noted in

Patterson and declined to do so in the

context of McMillan since the Court was

persuaded that the Pennsylvania law did not

exceed those limits. Id. at 87.

While the Court held in McMilian

that in the limited circumstances pertaining

to the Pennsylvania statute, a preponderance

of the evidence standard satisfied due

process, this Court has never considered due

process requirements for sentencing

guidelines such as 3Bl1.1(a).

Nevertheless, citing McMillan, the

Seventh Circuit has held that proof of

sentencing factors under the Sentencing

25

Guidelines by the preponderance of the

evidence satisfies due process. United

States v. Ross, 905 F.2d 1051,1054 (7th Cir.

1990).

Other circuits have made similar

holdings. United States v. Blanco, 888 F.2d

or: 4200. Gar: 1989); United States v.

Guerra, 888 F.2d 247 (2d Cir. 1989), cert.

denied, 494 U.S. 1090 (1990); United States

v. McDowell, 888 F.2d 285 (3rd Cir. 1989);

United States V. Urrego-Llinares, 879 F.2d

1234 (4th Cir.), cert. denied, vV.S. __,

110 S.Ct. 346 (1989); United States v.

Castro, 908 F.2d 85 (6th Cir. 1990); United

States v. Barnerd, 887 F.2d 841 (8th Cir.

1989); U.S. v. Rafferty, 911 F.2d 227 (9th

Cir. 1990); United States v. Matthews, 942

F.2d 779 (10th Cir. 1991); United States v.

Terzado-Madruga, 888 F.2d 1099 (llth Cir.

1990); United States v. Burke, 888 F.2d 862

(D.C.Cir. 1989).

McMillan, however, does not give

carte blanche to the principle that proof of

any sentencing guideline enhancement factor

by a preponderance of the evidence satisfies

due process. The Pennsylvania statute was

not "tailored to permit the visible

possession finding to be a tail which wags

the dog of the substantive offense." 4777

U.S. at 88. Chief Justice Rehnquist

indicates the "inability to lay down any

sm

‘bright line test stating that "the iaw

is full of situations in which differences

of degree produce different results." Id.

at 91.°

EH rae ) SR

See also United States v. Kikumura,

918 F.2d 1084 (3rd Cir. 1990). The Court of

Appeals held that a preponderance of the

evidence standard was sufficient for most

pertinent sentencing factors, a court should

not "reflexively apply the truncated

procedures that are perfectly adequate for

all of the more mundane, familiar sentencing

determinations" in those situations where

the sentencing provision is "the tail that

wags the dog.”

27

Sentencing Guideline 3Bl.1l(a) is

not similar to Pennsylvania's statute, and

the degree of difference dictates different

results. For the following reasons, the

result due process compels is to require the

government to establish the aggravating role

beyond a reasonable doubt.

B. Sentencing Guideline 3Bl1.1(a)

is not Merely a Sentencing Enhancement

Factor Which Co-Exists With the Charged

Elements of the Felonies to Which it Applies

Unlike the Pennsylvania statute,

Sentencing Guideline 3Bl.1(a) is not merely

a sentencing enhancement factor which co-

exists with the charged elements of the

felonies to which it applies. Id. at 89.

The federal sentencing guidelines are not

mere flexible guideposts for use in the

exercise of discretion. Miller v. Florida,

482 U.S. 423 (1987).’ The guidelines are

7

In a recent case, U.S. v. Bell, 789

F.Supp. 413, 420 (N.D. Iowa 1992), a

district court, utilizing the analytical

framework of Miller v. Florida, 482 U.S. 423

28

not guidelines at all, but instead dictate

mandatory sentencing ranges for all federal

crimes, replacing the statutory framework

that previously controlled a defendant's

sentence.

Unlike the Pennsylvania statute in

McMillan, Section 3Bl.1(@a) is derived from

a statutorily created crime, 21 VU.S.C.

Section 848, the continuing criminal

enterprise (CCE) offense. Both the language

of the enabling statute, 28 U.S.C. § 994(i),

and the guideline itself articulate

essentially the same description of

leadership as does the language of 21 U.S.C.

§ 848(d) which created the crime of

operating a continuing criminal enterprise.

~\

(1987) held that the federal sentencing

guidelines are laws for the purposes of the

Ex Post Facto Clause.

29

Under Section 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 a continuing series of violations of

this subchapter or subchapter 1l 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.

21 U.S.C. § 848(d)(1) (emphasis supplied).

Congress, in 28 U.S.C. § 994(1i)

directs the Commission to assure that the

guideline specify a sentence to a

"substantial" term of imprisonment where the

defendant

(3) committed the offense in furtherance

of a conspiracy with three or more

persons engaging in a pattern of

racketeering in which the defendant

participated in a managerial or

supervisory capacity.

28 U.S.C. § 994(i)(3).

The Sentencing Commission

30

translated this directive into Section 3Bl.1

which provides that a defendant's offense

level shall be increased

(a) If the defendant was an

organizer or leader of a criminal

activity that involved five or more

participants or was otherwise

extensive, increase by 4 levels.

(b) If the defendant was a manager

or supervisor (but not an organizer

or leader ) and the criminal

activity involved five or more

participants Or was otherwise

extensive, increase by 3 levels.

t[G) I f the defendant waS = an

organizer, leader, manager, or

supervisor in any Criminal activity

other than described above in (a)

or (b), increase by 2 levels.

Sentencing Guidelines § 3Bl.1.

While the reasonable doubt standard

may depend upon a legislature's definition

of an offense, there are constitutional

limits to that power. If the leadership

element of Section 848(d) which requires

proof beyond a reasonable doubt -can become,

by some legislative sleight of hand, a

31

sentencing factor that requires proof by a

mere preponderance of the evidence, there is

no limit to that power.

The Mullaney Court recognized just

such an eventuality and warned against

limiting the principles of Winship to facts

that constitute a crime as defined by

statute. If that were the law, this Court

reasoned, “a State could undermine many of

the interests that decision sought to

protect without effecting any substantive

change in the law. It would only be

necessary to redefine the elements’ that

constitute different crimes, characterizing

them as factors that bear solely on the

extent of punishment." Mullaney, 421 U.S.

at 699.

32

C. Sentencing Guideline 3Bl.1

Alters the Maximum Penalty for the Crime

Committed and Due Process Requires

Proof Beyond a Reasonable Doubt

The four-level enhancement created

by the guideline and applied by the trial

court to obtain Mr. Robinson's offense level

alters in fact the maximum penalty for the

crime committed. Unlike the Pennsylvania

statute which could not be equated to a4

specific period of incarceration and

affected only the minimum sentence, the

guideline expands the maximum penalty for

the crime committed. Mr. Robinson's

offense level - - taking into account the

quantities of cocaine allegedly involved and

his previous criminal record -- was 36.

Thus, the maximum penalty for the crime for

which he was charged and convicted was 24

years. But, application of Section 3Bl.1

raised his maximum penalty life imprisonment

(with a minimum sentence of 30 years) based

33

upon a fact not established at his trial

beyond a reasonable doubt. Under the

principles of Winship as refined in

McMillan, that result is not consistent with

due process.

CONCLUSION

The Seventh Circuit's rigid rule of

automatic relevance of other crimes evidence

when specific intent is an element of the

charged offense regardless of whether the

meena intent is disputed is in direct

conflict with the majority of the other

circuit courts of appeal. Uniformity is

needed on this recurring issue.

Mr. Robinson received a specific

additional sentence that altered the maximum

penalty he faced as a result of his

conviction based upon a factual finding by

a preponderance of the evidence. For the

reasons articulated herein, the imposition

of this sentence in this manner violated the

34

guarantees of due process articulated by

this Court.

For all these reasons, Mr. Robinson

respectfully requests this Honorable Court

to grant certiorari to review the judgment

and opinion of the Court of Appeals entered

in this case.

Respectfully submitted,

ROBERT W. RITCHIE

Counsel of Record for

Petitioner Paul Robinson

DAVID M. ELDRIDGE

606 W. Main Avenue

Knoxville, TN. 37902

(615) 637-0661

35

la

APPENDIX

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Nos. 89-3680, 89-3687

and 89-3726

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DANIEL W. ROBINSON,

DILLARD E. WOODS, and

PAUL E. ROBINSON,

Defendants-Appellants.

Appeal from the United States District Court

for the Southern District of Illinois.

(No. 88 CR 30021)

Argued October 25, 1990 --

Decided February 27, 1992

Before COFFEY and KANNE, Circuit Judges, and

ESCHBACH, Senior Circuit Judge.

KANNE, Circuit Judge. On May 17,

1989, Daniel W. Robinson, Paul E. Robinson,

2a

and Dillard E. Woods were charged in a four

count superseding indictment with conspiracy

to distribute and possession with the intent

to distribute large quantities of cocaine.

Count 1 charged that, from 1980 until May

1988, the appellants, together with Edward

E. Alvarez and Serafin Hernandez, conspired

to distribute and possessed with the intent

to distribute five or more kilograms of

cocaine in violation of 21 U.S.C. §§

841(a)(1) and § 846.* Count 2 charged that

Paul and Daniel Robinson and others, on or

about March 14, 1988, possessed with intent

to distribute five kilograms or more of

cocaine in violation of § 841(a)(1) and 18

Usha. BH es Count 3 charged that the

appellants, on or about April 142, 1988,

possessed with intent to distribute 500

1 Alvarez and Hernandez were fugitives

from justice at the time of trial, but have

since been apprehended.

3a

grams or more of cocaine in violation of §

841(a)(1) and 18 U.S.C. § 2. Count 4

charged that on or about March 13-14, 1988,

Paul and Daniel Robinson aided and abetted

or caused interstate travel to facilitate

the unlawful activity in violation of §§

841(a)(1) and 846, and 18 U.S.C. §§ 1952 and

es

On June 21, 1989, a jury found

Paul and Daniel Robinson guilty on all

counts and found Dillard Woods guilty on

counts 1 and 3. Pursuant to the Sentencing

Guidelines, the district court sentenced

Paul to a total of 360 months imprisonment

and Daniel to a total of 288 months

imprisonment. * Woods received 121 months

imprisonment. On appeal, the appellants

Challenge their convictions on numerous

* Both Paul and Daniel Robinson's

sentences on counts 2, 3, and 4 are to be

served concurrently with their sentences on

count 1l.

4a

grounds. In the alternative, Paul argues

that the district court incorrectly applied

the Sentencing Guidelines in sentencing him.

We affirm.

In 1972, Paul, with others, was

smuggling marijuana from Florida to the St.

Louis, Missouri-Southern Illinois area. The

operation was not successful until 1974.

During the early 1970's, George Yager, who

testified for the government at trial, made

numerous trips between Florida and St.

Louis. Yager transported 200 pound

shipments of marijuana to St. Louis and

returned to Florida with the proceeds from

the sale of those shipments. Another

witness for the government, Richard Yackey,

also drove shipments from Florida to St.

Louis for Paul. Daniel managed _ the

distribution of the marijuana in the St.

Louis area, and reported to his brother

Paul, who was in charge of the entire

operation.

In the late 1970's, the Robinson

organization expanded its activities. In

1977, Yackey was sent by Paul to Colombia to

purchase 20,000 pounds of marijuana. In

1979, however, the marijuana distr‘ bution

operation ended because the organization

suffered several financial setbacks,

including the loss of a large boat load of

marijuana.’

In 1978, Paul was convicted of

four state felony narcotic offenses in

Broward County, Florida and received a

twenty-year term of imprisonment. This

sentence was later reduced to fifteen years

3

The appellants were not charged in the

indictment for any of their actions before

1980. The government introduced evidence of

the 1972 to 1979 marijuana conspiracy under

Rule 404(b) of the Federal Rules of Evidence

to show “intent, preparation, plan and

knowledge."

6a

imprisonment on appeai.

In late 1979, before he began

serving his Florida sentence, Paul contacted

Yackey in St. Louis and asked Yackey to help

him begin distributing cocaine. Paul wanted

to begin selling cocaine to obtain income

for his family while he was incarcerated in

the Florida penitentiary system. Paul knew

that Yackev's contact in St. Louis, Edward

Murphy, was willing to purchase cocaine on

a regular basis. In the fall of 1979,

Murphy came to Florida to purchase a pound

of cocaine with Yackey, which had been

procured by Paul.

After the sale to Murphy was

completed, Yackey explained the operation to

Daniel. They decided that Yackey would

contact Alvarez to determine if he would

supply cocaine directly to the Robinson

organization on a regular basis. The

organization would in turn deliver the

7a

cocaine to Murphy. Alvarez agreed. After

that, Murphy made regular "runs" to Florida

to obtain multi-kilogram quantities of

cocaine from Alvarez and bring it to St.

Louis. Under the arrangement he reached

with Yackey, Murphy received 50% of the

profits, while the Robinsons and Yackey

received the remainder. Murphy was also

entirely responsible for financing the

operation.

Woods assisted Murphy in "breaking

down" the cocaine for sale and would also

"Stash" cocaine at his apartment in St.

Louis. On occasion, Woods would deliver

cocaine to Daniel's customers.

After several successful shipments

of cocaine to the St. Louis area, Daniel

told Yackey to inform Paul of the group's

operations. After Yackey informed Paul of

the group's activities, Paul and Daniel

agreed that Yackey could retain 40 to 50% of

8a

their share of the organization's profits

and that the Robinsons would receive the

remainder.

In June 1981, Paul began serving

his Florida sentence, which he completed in

June 1985. While Paul was incarcerated,

Daniel received Paul's share of the proceeds

of the cocaine smuggling operation. From

1979 until 1984, approximately 110 kilograms

of cocaine were purchased from Alvarez and

other sources and brought to the St. Louis

area for distribution.

In 1984, the Robinson organization

distributed significantly less cocaine than

in prior years. In January, Alvarez brought

up a load of 15 kilograms, which was sold.

Shortly thereafter, Yackey distributed the

profits to Daniel (which included Paul's

share) and to himself. Murphy then departed

and the organization ceased operation for a

short time. Yackey stated at trial:

-pecnaiiiileniiiiaiaiaaaiia

9a

"[bJasically it was disbanded, we did

nothing anymore. that was the end of it

between all of us."

In late 1984, Daniel told Yackey

that he was broke and wanted to. start

dealing cocaine again. Yackey, whose

finances were in a similar condition, agreed

to join him. Yackey then borrowed money

from Murphy and began arranging shipments

from Alvarez to the St. Louis area. Daniel

told Yackey that he and Yackey would split

the profits evenly.

Yager, who was then working at

Yackey's restaurant, became the

organization's principal runner. He often

went to Miami, Florida to receive cocaine

shipments from Alvarez and deliver the

cocaine to the St. Louis area where it was

stored by Woods. Yackey, Daniel, and Yager

each had customers who would buy the group's

cocaine for resale.

10a

In 1985, Yager was told by Daniel

that Yager, Daniel, Paul and Yackey were

partners in the cocaine business. During

that period, the organization first paid

Yager in cash, but eventually paid him in

cocaine, while it paid Woods in cash.

In June 1985, Paul was released

from the Florida penitentiary system and

moved back to St. Louis. Once there, he met

with Yackey and demanded his one-third share

of all the money made by the organization

since late 1984, because, he argued, he had

established the supply connection with

Alvarez in the 1970's. Yackey then received

instructions from Daniel to give Paul a one-

third share of all profits which the

organization received after it continued

operations in late 1984, and to readjust the

organization's books accordingly.

The Robinson organization

continued to ship cocaine from Florida to

lla

St. Louis from 1985 until April 1988, when

Paul and Woods were arrested. Between 1984

and 1988, 100 to 105 kilograms of cocaine

were obtained from Alvarez and successfully

distributed in the St. Louis area, with the

exception of 30.9 kilograms which were

seized by Drug Enforcement Administration

("DEA") agents during the investigation of

the appellants.

In early 1988, the activities of

the Robinson organization became known toa

drug enforcement agents. In March, Yackey

travelled to Florida to meet with Alvarez to

arrange the purchase of ten kilograms of

cocaine. Yager joined Yackey in Florida

with the money for the purchase, which he

had received from Daniel. Yackey exchanged

funds for five of the ten kilograms

purchased with Alvarez, and Yager travelled

back to St. Louis with five kilograms of

cocaine.

12a

Upon his return to St. Louis,

Yager took the five kilograms of cocaine to

a storage locker he had secured in Granite

City, Illinois. When he arrived at the

storage facility, on March 14, 1988, Yager

was arrested by drug enforcement agents.

After his arrest Yager agreed to co-operate

with the government.

On that day, the drug enforcement

agents also executed search warrants on the

storage space and on a rental vehicle that

Yager had parked near the locker. In

addition to the five kilograms of cocaine

found in the vehicle, the agents also found

.25 of a kilogram in the locker. The .25

kilogram quantity was a portion of a fifteen

kilogram shipment from Alvarez to St. Louis,

in January 1987, that had been given to

Yager to sell on consignment.

A few days later, after Yackey had

also returned from Florida to the St. Louis

13a

area, Yager arranged to meet with him to

give him the five kilograms of cocaine.

After Yackey's arrival on March 18, 1988, he

was arrested by drug enforcement agents.

The agents also seized a handwritten drug

ledger from Yackey. Later that day, Yackey

agreed to cooperate with the government.

On March 23 1988, drug

enforcement agents requested that Yackey

contact Alvarez to set up a purchase of

twenty kilograms of cocaine. Yackey

contacted Alvarez on several occasions to

discuss this transaction. At the request of

the drug enforcement agents, who were

concerned that the undercover operation

might be discovered, Yackey informed Alvarez

that the deal would not directly involve

either of the Robinsons.

Yackey, at the request of the

agents, also placed a camera in his office

at his restaurant. On March 31, 1988,

14a

Daniel visited Yackey at his restaurant.

Daniel would not talk to Yackey, but instead

relied on written messages to inform him

"not to talk." Daniel then took Yackey to

a lawyer's office in downtown St. Louis,

where he determined that Yackey was not

wearing a wire. They then returned to

Yackey's restaurant where Yackey gave Daniel

$4,000 and told him that $2,000 was for him

and $2,000 was for Paul.

On April 2, 1988, Paul met with

Yackey at a park in St. Louis County. He

informed Yackey that he and Daniel had been

arguing about how much money that he was

spending. Paul told Yackey that Alvarez was

"his connection" and that he wanted to split

up with his brother Daniel and run the

operation himself.

Yackey travelled to Florida on

April 8 to complete the purchase of twenty

kilograms from Alvarez that he had arranged

15a

shortly after his arrest. After the

transaction was completed, Alvarez and

Hernandez were arrested.

Paul met with Yackey at his

restaurant on April 12, and told him to

“come clean" if he had been "busted." Paul

told him that "we need to know" because "we

can say you were forced to cooperate."

On April 13, 1988, in Granite

City, drug enforcement agents executed a

search warrant at Woods' residence. The

agents seized fifteen ounces of cocaine and

took Woods into custody. The Robinsons were

arrested shortly thereafter.

II.

The appellants argue that the

district court erred in denying their

motions for a judgment of acquittal at the

close of the government's case because the

government proved that they engaged in

several conspiracies, not the single ongoing

l6a

conspiracy alleged in count 1 of the

indictment. They contend that this variance

from the indictment was prejudicial and

requires us to reverse their convictions.

See United States v. Napue, 834 F.2d 1311,

1333 (7th Cir. 1987) (if there waS a

variance between the indictment and the

proof, the defendant must demonstrate that

it "had a substantial and injurious effect

on the case's outcome"). We find that there

was no variance.

"Whether there is one conspiracy

or many is a question of fact for the jury's

determination." United States v. Molt, 772

F.2d 366, 369 (7th Cir. 1985), cert. denied,

475 U.S. 1081, 106 S.Ct. 1458 (1986). See

also United States Vv. Tarantino, 846 F.2d

1384, 1391 (D.C. Cir.), Cert denied, 488

U.S. 840, 109 S.Ct. 108 (1988), cert denied,

488 U.S. 867, 109 S.Ct. 174 (1988) (holding

that a "verdict must be upheld if the

a

17a

evidence adequately supports a finding that

a single conspiracy existed."). In Napue,

we stated that "[s]Jeparate conspiracies

exist when each of the conspirators'

agreements has its own end, and each

transaction constitutes an end in itself."

834 F.2d at 1332. A single conspiracy

exists when "the agreements between the

conspirators represent stages or different

functions to be performed in the formulation

of a larger scheme, the object of which is

to effectuate a single unlawful result."

Id. "A single conspiracy cannot be found,

however, when there is no overall goal or

common purpose." United States v. Percival,

756 F.2d 600, 607 (7th Cir. 1985).

The appellants argue that the

evidence proves that there were’ three

separate conspiracies, which occurred

between 1980 and 1988. They claim that the

first cocaine conspiracy began in 1980 and

18a

ended in 1984. To show that the conspiracy

ended, the appellants pointed to Yackey's

statement at trial that: "[b]Jasically it was

disbanded. We did nothing anymore. That

was the end of it between all of us." The

appellants assert that the second cocaine

distribution conspiracy began in late 1984

or early 1985 and operated with virtually

identical personnel until March 1988, when

Yackey and Yager were arrested and began

cooperating with the government. They

further contend that the third conspiracy

began in March 1988 and ended in May 1988,

when the twenty kilogram transaction between

Yackey, Alvarez and Hernandez was completed.

Accordingly, they argue that Paul, Daniel

and Woods were not members of this

conspiracy because they were not involved in

the transaction.

The evidence was more than

adequate for the jury to find that there was

19a

a single conspiracy to distribute cocaine

from 1980 to 1988. The appellants, together

with Yackey and Yager, shared a common

purpose to distribute large quantities of

cocaine in St. Louis and Southern Illinois.

The Robinson organization consistently

utilized Alvarez as its source for cocaine

throughout the 1980's, and used Murphy to

supervise the distribution of the cocaine in

the St. Louis area. Moreover, throughout

the 1980's, Yager and Yackey transported the

cocaine shipments from Florida to St. Louis.

We reject the appellants' argument

that Yackey's statement that the cocaine

distribution conspiracy was disbanded in

1984 proved that there were at least two

conspiracies. Other evidence introduced by

the government tended to show only that

there was a brief lull in their cocaine

distribution during the early months of

1984. See United States v. Mealy, 851 F.2d

| renee

20a

890, 897 (7th Cir. 1988) (the fact that the

defendant was not continuously involved with

the other conspirators did not negate a

finding of a single conspiracy). Between

1984 and 1985, the appellants' participation

in the drug transactions remained largely

unchanged. See United States Vv.

Balistrieri, 779 F.2d 1191, 1213 (7th Cir.

1985), cert denied, 475 U.S. 1095, 106 S.Ct.

1490 (1986) ("[{c]continuity of a conspiracy

does not require perfect continuity of

membership."); United States v. Stern, 858

F.2€ 1241, 1249 (7th Cir. 1986). The

appellants and the other conspirators

clearly sought to achieve the same purpose,

namely to distribute large amounts of

cocaine, from 1985 to 1988 as they had from

1980 to 1984. See Percival, 756 F.2d at 607

(to find a single conspiracy the government

must show that there was an "overall goal or

common purpose" ).

2la

We also reject the appellants'

argument that the arrest of Yackey and Yager

terminated the conspiracy. The arrest of a

member of a conspiracy does not necessarily

terminate the conspiracy as a matter of law,

because "the remaining conspirators may

continue to carry out the goals of the

conspiracy notwithstanding the arrest of one

of their partners." Mealy, 851 F.2d at 901;

Uniteu States v. Papia, 560 F.2d 827, 835

(7th Cir. 1977). Alvarez continued to carry

out the goals of the conspiracy after the

arrest of Yager and Yackey. There is no

evidence that any of the appellants

attempted to withdraw from the conspiracy

after the arrest of Yackey and Yager.

United States v. Andrus, 775 F.2d 825, 850

[vom Sands 1985). The evidence was

sufficient for the jury to find that the

appellants were members of one cocaine

distribution conspiracy.

22a

A related issue is whether the

district court properly admitted into

evidence, pursuant to Rule 801(d)(2)(E) of

the Federal Rules of Evidence, statements by

Alvarez to Yackey regarding the May 1988

twenty kilogram sale. The appellants argue

that because the Robinsons and Woods were

not involved in that transaction, the

testimony was improperly admitted into

evidence. They are incorrect.

Statements by a co-conspirator may

be introduced against other conspirators if

the government shows that: (1) a conspiracy

existed; (2) the defendant and declarant

were members thereof; and (3) the offered

statement was made during the course of and

in furtherance of the conspiracy. United

States v. Hooks, 848 F.2d 785, 794 (7th Cir.

1988); United States v. Kaden, 819 F.2d 813,

818 (7th Cir. 1987); see also Bourjaily v.

United States, 483 U.S. 171, 107 S.Ct. 2775

23a

(1987). We review a district court's

findings with respect to these elements for

Clear error. Hooks, 848 F.2d at 794; Kaden,

819 F.2d at 819.

We have already concluded that a

conspiracy existed, and that the arrest of

Yager and Yackey did not terminate it,

satisfying the first requirement. The

second requirement -- that the defendant and

the declarant were members of the conspiracy

-- is also satisfied. The third requirement ~

-- that the offered statement was made

during the course of and in furtherance of

the conspiracy -- was clearly satisfied.

Alvarez's statements to Yackey regarding the

sale of twenty kilograms of cocaine included

discussions of the price, payment terms, and

arranging delivery. These statements were

in furtherance of the conspiracy. The fact

that one party to the conversation, Yackey,

was acting at the request of government

24a

agents does not bar admission of a

conspirator's statements under Rule

801(d)(2)(E). Mealy, 851 F.2d at 901;

United States v. Hamilton, 689 F.2d at 1262,

1269 (6th Cir. 1982), cert denied, 459 U.S.

sZiv, 303 3.CC. 753 (1963).

Equally meritless is the

appellants’ argument that the district

court's instructions amended the indictment.

Counts 2 and 3 of the indictment charged the

appellants (count 2 excluded Woods) with

possession of cocaine on different occasions

with the intent to distribute, in violation

Of § 841(a)(1) and 18 U.S.C. § 2. The

district court added the words "or aided and

abetted another" to the jury instructions

relevant to those counts. The appellants

argue that the district court thereby

amended the indictment. Aiding and abetting

need not be alleged in an indictment.

United States v. Galiffa, 734 F.2d 306, 312

25a

(7th Cir. 1984) (the district court can give

an aiding and abetting instruction based

upon the evidence if no unfair surprise

results). If 18 U.S.C. § 2 is charged in

the indictment, the defendant is put on

notice that he can be convicted as an aider

and abettor. Id. Because a violation of 18

U.S.C. § 2 was charged in the indictment,

the appellants can neither claim an

amendment of the indictment nor unfair

surprise.

Paul and Daniel also contest the

district court's decision to allow the

government to introduce tape and video

recordings of conversations between

themselves and Yackey, and its decision to

allow the jury to read transcripts of those

conversations, which were prepared by the

government, as the tapes played.

After listening to all of the

tapes, with and without transcripts, the

26a

district court found that the tapes were

sufficiently audible and trustworthy to be

admissible. The district court agreed with

the appellants that certain portions of the

tapes were inadmissible. The court also

held that a transcript of the taped

conversations could be supplied to the jury

for its use. The appellants and the

government were unable to agree on a single

transcript, and the appellants decided not

to give the jurors their version of the

transcripts. The district court found that

the government's transcripts were

sufficiently accurate to warrant their

submission as an aid to the jury.

The appellants next argue that the

district court abused its discretion in

determining that the tapes were sufficiently

audible and trustworthy to be admissible.

"'(T]ape recordings which are only partially

‘unintelligible are admissible unless the

27a

unintelligible portions are so substantial

as to render the recording as ae whole

untrustworthy.'" United States v. Zambrana,

864 F.2d 494, 498 (7th Cir. 1988)(quoting

United States v. Wilson, 578 F.2d 67, 69

(5th Cir. 1978)). Our review of the tapes

indicates that the tapes were generally

audible, with inaudible portions. The

inaudibility of a portion of a tape, which

is generally audible, is relevant only to

its weight, a jury question, not to its

admissibility. United States v. Vega, 860

F.2d 779, 790-91 (7th Cir. 1988).

The appellants also contend that

the district court abused its discretion in

allowing the jury to read government

transcripts of the conversations as_ the

taped conversations played. It is well

settled that the district court has broad

discretion "in deciding whether to allow the

jury to use written transcripts as aids in

ieee

28a

listening to tape recordings." United

States v. Keck, 773 F.2d 759, 766 (7th Cir.

1985); Zambrana, 864 F.2d at 497. The

district court followed the procedures we

set forth in Zambrana, in ordering the

parties to prepare a stipulated transcript

or to produce alternate versions of the

conversations. See id. at 498. The

appellants declined to prepare their own

version of the conversations. After

reviewing the tapes and the transcripts, we

conclude that the district court did not

abuse its discretion in determining that the

government transcript was sufficiently

accurate to allow its use by the jury.

Paul and Daniel next contend that

the district court erred in applying Rule

404(b) when it admitted evidence that Paul

and Daniel engaged in a marijuana conspiracy

in the 1970's. Woods argues that the

evidence of the Robinsons' marijuana

ee ee

Beit

7 ae ee

29a

conspiracy prejudiced him. After

considering the evidence and the appellants'

objections, the district court admitted the

evidence to show the Robinsons' "intent,

preparation, plan and knowledge."

We review a district court's

decision to admit evidence of a defendant's

prior crimes for an abuse of discretion.

United States v. Chaimson, 760 F.2d 798, 808

(vom Cir. 1985). In determining whether

evidence of a defendant's other crimes,

wrongs, or acts is admissible we apply a

four-part test. United States v. Lennartz,

948 F.2d 363, 366 (7th Cir. 1991). That

evidence may be admitted where:

(1) the evidence is

directed toward

establishing a matter in

issue other than the

defendant's propensity

to commit the crime

charged, (2) the

evidence shows that the

other act is’ similar

enough and close enough

in time to be relevant

to the matter in issue,

me ee ee

TT

—— is

30a

(3) the evidence is

sufficient to support a

jury finding that the

defendant committed the

Similar act, and (4) the

probative value of the

evidence is not

substantially outweighed

by the danger of unfair

prejudice.

Id. (quoting United States v. Whalen, 940

F.2d 1027, 1032 (7th Cir.), cert. denied,

U.S. , £12 S.Ct. 403 (1991)). See

also United States v. Shackleford, 738 F.2d

FIO, F279. Coe Bats. Apees

The evidence of the marijuana

conspiracy clearly satisfies the first

element of the test. See Chaimson, 760 F.2d

at 805 (where specific intent is an element

of the crime charged, evidence of other acts

may be introduced to establish that intent);

United States v. Liefer, 778 F.2d 1236, 1243

(7em Car. 2985). The third element of the

four-part test is also satisfied. The

appellants argue that the second element of

3la

the test is not satisfied because the

marijuana conspiracy began long before the

cocaine distribution conspiracy. They also

contend that the two conspiracies'

operations differed significantly, and that

the two conspiracies had different members.

They note that the marijuana conspiracy,

unlike the cocaine conspiracy, imported some

of the narcotics directly from Colombia.

Moreover, they insist that the marijuana

conspiracy also included several

conspirators who were not involved in the

cocaine conspiracy.

Contrary to appellants'

contentions, we conclude that the second

element of the test is satisfied. The

marijuana conspiracy was, in fact, quite

Similar to the cocaine distribution

conspiracy. Paul was the leader of both

conspiracies and was assisted throughout by

Daniel, who played a major role in

32a

41 gout ion in the St. Louis area. The

@nspiracies both distributed illegal

narcotics purchased from sources in Florida

and both principally utilized Yager and

Yackey as "runners." Although the marijuana

conspiracy began long before the cocaine

distribution conspiracy, the later

conspiracy commenced shortly after the

marijuana conspiracy was terminated. See

Liefer, 778 F.2d at 1252 (finding that

evidence of a prior conspiracy was not too

remote because it ended shortly before a

second conspiracy began). The evidence

demonstrated that Paul used the

organizational framework developed during

the marijuana conspiracy to initiate the

cocaine conspiracy.

The fourth element of the four-

part test is whether "the probative value of

the evidence is ; : , substantially

outweighed by the danger of unfair

33a

prejudice." Lennartz, 948 F.2d at 366;

Jackson v. United States, 886 F.2d 838, 847

(7th Cir. 1989). The probative value of the

evidence of the marijuana distribution

conspiracy to show intent, motive, and

opportunity is strong because it

demonstrated that the Paul and Daniel

utilized essentially the same organization

to distribute cocaine. The unfairly

prejudicial impact of the evidence, although

not negligible, was limited because the

district court instructed the jury that it

could not consider the evidence of the

marijuana conspiracy as evidence of the

appellant's guilt.

Our decision in Liefer is

instructive here. 778 F.2d at 1252. In

Liefer, we upheld the admission of evidence

of the defendant's membership in an

uncharged drug conspiracy. In that case,

one conspirator testified that the charged

34a

conspiracy grew out of his contacts from a

prior conspiracy. The defendant was a

member of both conspiracies. Id. We upheld

the admission of the co-conspirator's

testimony "as background on how the

conspiracy developed, and to show the

[defendant]'s intent and plan to resume

operating as a middleman for [the testifying

conspirator]." Id. Accordingly, we hold

that the district court did not abuse its

discretion in admitting evidence that the

appellants had conspired to distribute

marijuana in the 1970's.

Even if we were convinced that the

evidence did not meet the requirements for

admissibility under Rule 404(b), we would be

required to affirm the appellants'

convictions because the evidence of their

guilt was overwhelming, and thus, any error

was harmless. See United States v.

Williams, 951 F.2d 853, 858 (7th Cir. 1992).

35a

Paul raises an additional Rule

404(b) challenge to his convictions. He

argues that the district court erred in

allowing the government to introduce

evidence of his prior imprisonment as a

result of his Florida conviction. At trial,

Yackey testified that Paul told him, in 1980

or 1981, that he wanted to begin

distributing cocaine because he needed to

“support his family and keep things going"

while he was in prison. The government

introduced evidence of Paul's Florida

imprisonment to explain his motive, intent,

Opportunity and plan, in setting up the

cocaine distribution operation. The jury

was not informed of the criminal conduct

underlying the imprisonment.

Paul argues that this evidence

does not meet the four-part test for the

admissibility of Rule 404(b) evidence.

Daniel and Woods argue that Yackey's

36a

testimony also prejudiced them as well. We

conclude that the testimony met the four-

part test under Rule 404(b). The testimony

clearly met the first and third elements of

the test. See Lennartz, 948 F.2d at 366.

The evidence was highly relevant to the

conspiracy charge because it explained why

Paul began distributing cocaine, thus

satisfying the second part of the test. The

chance that the evidence would unfairly

prejudice Paul was sufficiently reduced

because the government did not introduce

evidence of the conduct underlying the

sentence of imprisonment. Thus, the fourth

element of the test was satisfied. See id.

This case is unlike United States

v. Falco, 727 F.2d 659, 663 (7th Cir. 1984)

where the government properly introduced the

defendant's prior theft convictions to show

that the defendant knew that goods’ he

possessed were stolen. Here, the jury was

Sin DS ia al Da at sale J

37a

aware only that, in 1980 or 1981, Paul had

been convicted and would soon after serve a

prison sentence. The evidence was

introduced only to show why he began the

cocaine distribution conspiracy. Paul's

prior imprisonment was not introduced to

show that he had a propensity for committing

drug related offenses.

The appellants contend that the

district court abused its discretion in

refusing to allow the appellants to cross

examine Yager and Yackey about their past

drug use. They also contend that the

district court's rulings violated their

rights under the confrontation clause.

During voir dire examination out of the

jury's presence, Yackey and Yager each

admitted to extensive past drug use. As to

Yager, the district court prohibited cross-

examination about past drug use, finding

that the appellants had not shown that "the

38a

use of drugs to the extent that [Yager] has

testified has affected his truthfulness or

his ability to remember or testify

truthfully as to that memory." As to

Yackey, the district court allowed the

appellants to show during cross-examination

that he had suffered blackouts and memory

loss from the use of alcohol, and that he

had used alcohol in combination with

cocaine.

The district court has_ broad

discretion in limiting the cross-examination

of a witness. United States vv. Herrera-

Medina, 853 F.2d 564, 566 (7th Cir. 1988);

United States v. Robinson, 832 F.2d 366, 373

r(7tn Cir. 1987), cert denied, 486 U.S. 1010,

108 S.Ct. 1739 (1988). In United States v.

Cameron, we held that the district court may

admit evidence concerning a witness' own

past drug use insofar as it relates to his

possible inability to recollect and

iia Ninian iiniai iia

Mba? 4 aarw

39a

relate." 814 F.2d 403, 405 (7th Cir. 1987)

(quoting United States v. Banks, 520 F.2d

627, 631 (7th Cir. 1975)); Jarrett v. United

States, 822 F.2d 1438, 1445 (7th Cir. 1987).

Therefore, the district court need only

allow cross-examination concerning a

witness' past drug use if the witness'

memory or mental capacity are "legitimately

at issue." Cameron, 814 F.2d at 405. We

also noted, in Cameron, that "evidence that

a witness has used illegal drugs may so

prejudice the jury that it will excessively

discount the witness' testimony." Id.;

FED.R.EVID. 403. The district court may bar

cross-examination about a witness’ illegal

drug use when it is used "for the sole

purpose of making a general character

attack." Cameron, 814 F.2d at 405.

The appellants contend that the

district court should have allowed them to

inquire into past drug use to impeach the

r 40a

character and credibility of Yackey and

Yager, and to show that they were more

involved in the Robinson organization then

they admitted. The appellants, in sum,

insist that witnesses who have previously

used narcotics are more likely to tell lies.

This is exactly the type of character attack

that Cameron and Jarrett forbid.

The appellants cannot show that

the district court unfairly limited cross-

examination. As to Yackey, the appellants'

objection that cross-examination wes

unfairly limited is meritless because the

district court allowed the appellants to

demonstrate that drug and alcohol use had

caused memory loss. As to Yager, the

district court did not abuse its discretion

in limiting cross-examination because, in

voir dire, the appellants did not establish

that Yager's drug use had affected his

memory of relevant events. The appellants'

——xeaaaaa

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- 4la

confrontation clause argument is similarly

without merit. See United States v. Diaz,

876 F.2d 1344, 1349 (7th Cir. 1989); United

States ex rel. Ashford v. Director, Ill.

Dept. of Corr., 871 F.2d 680, 685 (7th Cir.

1989).

Paul argues that the district

court erroneously denied his motion for a

mistrial after, he contends, a government

witness, Agent Michael Braun, made an

unconstitutional comment upon his_ post-

Miranda silence. Doyle v. Ohio, 426 U.S.

610, 96 S.Ct. 2240 (1976). A review of the

record demonstrates that this argument is

without merit.

After Agent Braun arrested Paul,

and read him a Miranda warning, Paul made

two statements. First, Paul said "[{t]he

only thing I talked to him [Yackey] about

over the phone or in his office the last

couple days is about a restaurant I want him

42a

to help me with in Manchester." Yackey was

present when the arrest took place. Agent

Braun responded that the investigation had

been going on for several weeks and that

Yackey was cooperating. At trial, Agent

Braun stated that: "[Paul] dropped his head

and said, 'Oh forget it.'"

It is readily apparent from this

conversation that Agent Braun did not

comment upon Paul's silence in violation of

the due process clause. In Doyle, the court

held that "the use for impeachment purposes

of petitioner's silence, at the time of

arrest and after Miranda warnings, violated

the Due Process Clause of the Fourteenth

Amendment." Id. at 619, 2245.- After he

received a Miranda warning, Paul voluntarily

waived his constitutional right to remain

Silent. We hold that the government made no

comment upon his silence.

The district court also properly

43a

increased, by four levels, Paul's offense

level as an organizer or leader of the

conspiracy, pursuant to Sentencing Guideline

§ 3Bl.l(a). See United States Sentencing

Commission, Guidelines Manual, § 3Bl.1(a)

(1991). We review the district court's

factual finding that Paul was an organizer

or leader of criminal activity for clear

error. United States v. Rosengard, 949 F.2d

905, 908 (7th Cir. 1991); United States v.

Hintzman, 937 F.2d 1196, 1199 (7th Cir.

1991); United States v. Herrera, 878 F.2d

wer, Aauou {7th Cir. 1989). The record

evidence was sufficient for the district

court to find that Paul was leader of the

cocaine distribution conspiracy. Paul

initiated the conspiracy, obtained its

source of supply, and retained a leadership

role throughout its existence. United

States v. Thompson, 944 F.2d 1331, 1348-49

es- Wak 1991) (the defendant located

44a

cocaine sources, recruited couriers, and

profited significantly from the activities

of the conspiracy); United States v. Cooper,

942 F.2d 1200, 1209 (7th Cir. 1991).

ee ae

The other arguments raised by the

appellants are without merit.

We AFFIRM the convictions’ and

sentence of Paul Robinson and the

convictions of Daniel Robinson and Dillard

Woods.

A true Copy:

Teste:

Clerk of the United States

Court of Appeals

for the Seventh Circuit

45a

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Nos. 89-3680, 89-3687

and 89-3726

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

DANIEL W. ROBINSON,

DILLARD E. WOODS, and

PAUL E. ROBINSON,

Defendants-Appellants.

ORDER

(April 24, 1992)

Before JOHN UL. COFFEY, Circuit Judge,

MICHAEL S. KANNE, Circuit Judge, and JESSE

E. ESCHBACH, Senior Circuit Judge

On consideration of the petitions

for rehearing with Suggestion for rehearing

en banc filed in the above entitled cause,

no judge in active service requested a vote

46a

thereon and all of the judges on the

Original panel have voted to deny a

rehearing. Accordingly,

IT IS HEREBY ORDERED that the

aforesaid petitions for rehearing be, and

the same are hereby, DENIED.

A True Copy:

Teste:

Clerk of the United States

Court of Appeals for the

Seventh Circuit

47a

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

UNITED STATES OF AMERICA,

Plaintiff,

vs.

PAUL E. ROBINSON,

DANIEL W. ROBINSON,

EDWARD E. ALVAREZ,

SERAFIN HERNANDEZ and

DILLARD E. WOODS,

Defendants.

CRIMINAL NO. 88-30021

Title 21

Sections 84l(a)(1) and 846

Title 18

Sections 1952 and 2

United States Code

THE GRAND JURY CHARGES:

COUNT 1

That from in or about 1981,

and continuously thereafter, up to and

including the date of this indictment, in

Madison and St. Clair Counties, in the

Southern District of Illinois, and in divers

48a

other Districts,

PAUL E. ROBINSON,

DANIEL W. ROBINSON,

EDWARD E. ALVAREZ,

SERAFIN HERNANDEZ and

DILLARD E. WOODS,

defendants herein, did knowingly combine,

conspire, confederate and agree together,

with each other, and with divers other

persons both known and unknown to the Grand

Jury, to Knowingly and intentionally

distribute, and possess with intent to

distribute, divers quantities of cocaine, a

Schedule II Narcotic Controlled Substance,

in violation of Title 21, United States

Code, Section 841(a)(1);

WAYS AND MEANS

Ss It was a part of the

conspiracy that PAUL E. ROBINSON, DANIEL W.

ROBINSON, and others, would finance the

purchase of large, multi-kilogram amounts,

ee

49a

of cocaine on a regular basis.

a: It was a further part of the

conspiracy that various persons would make

regular trips, or "runs", to south Florida,

and other places, to produce cocaine, from

EDWARD E. ALVAREZ, and SERAFIN HERNANDEZ,

and other persons, and return to the St.

Louis Metropolitan area in both the Southern

District of Illinois and Eastern District of

Missouri.

Se It was a further part of the

conspiracy that once the cocaine was in the

St. Louis Metropolitan area it would be kept

in large amounts at various "stash house"

locations in both the Southern District of

Illinois and Eastern District of Missouri

where it would be broken down into small

quantities for resale by various large and

small dealers, and others.

4. It was a further part of the

conspiracy that in excess of approximately

50a

125 kilograms (275 pounds) of cocaine would

be distributed and caused to be distributed

in the St. Louis Metropolitan area by ALL

DEFENDANTS during the course of the

conspiracy.

>; all in violation of Title 21,

United States Code, Section 846.

COUNT 2

That on or about March 14, 1988,

in Madison County, in the Southern District

of Illinois,

PAUL E. ROBINSON,

DANIEL W. ROBINSON,

EDWARD E. ALVAREZ,

SERAFIN HERNANDEZ,

defendants herein, and others, did knowingly

and intentionally possess with intent to

distribute and cause to be distributed,

approximately 5.25 kilograms (11.5 pounds)

of cocaine, a Schedule II Narcotic

Controlled Substance; all in violation of

5la

Title 21, United States Code, Section

841(a)(1) and Title 18, United States Code,

Section 2.

COUNT 3

That on or about April 12, 1988,

Madison County, in the Southern District of

Illinois,

PAUL E. ROBINSON,

DANIEL W. ROBINSON,

DILLARD E. WOODS,

defendants herein, and others, did knowingly

and intentionally possess with intent to

distribute approximately 651 grams (1.43

pounds) of cocaine, a Schedule II Narcotic

Controlled Substance; all in violation of

Title 21, United States Code, Section

841(a)(1) and Title 18, United States Code,

Section 2.

COUNT 4

That on or about March 13-14,

1988, in Madison and St. Clair Counties, in

52a

the Southern District of Illinois, and

elsewhere,

PAUL E. ROBINSON,

DANIEL W. ROBINSON,

EDWARD E. ALVAREZ,

SERAFIN HERNANDEZ,

defendants herein, and others, unlawfully,

willfully and knowingly did travel in

interstate commerce, and did aid and abet

and cause travel in interstate commerce,

from the State of Florida to the State of

Illinois with intent to promote, manage,

establish, carry on and facilitate the

promotion, management, establishment, and

carrying on of an unlawful activity, said

unlawful activity being a business

enterprise involving the distribution of

cocaine, a Schedule II Narcotic Controlled

Substance in violation of Title 21, United

States Code, Section 841(a)(1); and,

thereafter did perform and cause to be

Bebe Mt BMG LEAS tet OS

abtate

GBBT 9 ped dh i

53a

performed acts facilitating said unlawful

activity of distribution of cocaine; all in

violation of Title 18, United States Code,

Sections 1952 and 2.

A TRUE BILL

FOREPERSON A True Copy

UNITED STATES ATTORNEY

Recommended Bond: Detention as to all

defendants