# Petition for Writ of Certiorari — Robinson v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1053%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1992 - **Citation:** 506 U.S. 1020 ## Text } 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 PM «REMC RIAA - 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1053%3A1. Public record. Not legal advice.