ELLIS MANNS, PETITIONER V. UNITED STATES OF AMERICA No. 90-5865 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Seventh Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A11) is reported at 905 F.2d 1100. JURISDICTION The judgment of the court of appeals was entered on June 26, 1990. The petition for a writ of certiorari was filed on September 24, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner's convictions on a drug conspiracy count and two substantive felony drug counts established a "continuing series of violations" for purposes of the continuing criminal enterprise statute, 21 U.S.C. 848. STATEMENT Following a jury trial in the United States District Court for the Northern District of Indiana, petitioner was convicted of engaging in a continuing criminal enterprise (CCE), in violation of 21 U.S.C. 848; conspiracy to possess marijuana with intent to distribute it, in violation of 21 U.S.C. 846; interstate travel in aid of racketeering, in violation of 18 U.S.C. 1952(a)(3); and two counts of possession of marijuana with intent to distribute it, in violation of 21 U.S.C. 841(a)(1). He was sentenced to 18 years' imprisonment, to be followed by five years of supervised release, and fined $125,000. 1. The evidence at trial showed that petitioner and Wayne Stone were the kingpins of an enterprise to harvest and distribute low-quality marijuana, known as "ditch weed," in Iowa and Nebraska. Petitioner and Stone organized and supervised the enterprise. They hired other individuals to pick the marijuana, made arrangements to rent storage facilities, and oversaw distribution of the marijuana. Between 1984 and 1987, the enterprise harvested thousands of pounds of marijuana and transported it to purchasers in other states. Petitioner personally participated in the delivery of six loads of marijuana to purchasers in Illinois, Indiana, New York and Florida. Gov't C.A. Br. 6-13, 19; Pet. App. A1. 2. With respect to the CCE count, the district court instructed the jury that the government was required to prove beyond a reasonable doubt that petitioner committed at least one of the federal narcotics felony violations charged in the indictment. The court told the jury that the distribution conspiracy charge could serve as such a predicate felony violation. The court further charged the jury that the government was required to prove that petitioner committed three or more felony violations of the federal narcotics laws in order to establish a "continuing series of violations." Gov't C.A. Br. 39. Petitioner objected to the jury instructions, asserting that the government was required to prove that he committed three or more of the offenses charged in the indictment as the predicate felony violations for a "continuing series of violation." Pet. C.A. Br. 3-6; Pet. C.A. Reply Br. 2-3. 3. The court of appeals affirmed. Pet. App. A1-A11. Although it regarded the district court's instructions on the CCE charge as "needlessly complex," the court concluded that "this did not work to (petitioner's) detriment." Id. at A8. The court observed that "(o)ne of the elements of the CCE offense is that the defendant supervise five or more others in a 'continuing series of violations' of the drug statutes." Id. at A2-A3. It also noted that "(c)ourts commonly define 'series' as three or more offenses; the jury instructions in this case did so." Id. at A3. In this case, "(t)he jury convicted (petitioner) of exactly three drug offenses: conspiracy to distribute marijuana and two possession offenses." Ibid. Consequently, the court observed, "(i)f a conspiracy is not a proper predicate offense, and if three is the minimum, the (CCE) conviction may not stand." Ibid. Contrary to the decisions of other courts of appeals, the court concluded that a drug conspiracy offense may not serve as a predicate violation for purposes of a CCE charge. Id. at A2-A4. But the court also held that proof of two or more substantive drug offenses is sufficient to establish a "continuing series of violation." Id. at A4-A7. Although the court of appeals recognized that the language of Section 848 is broad enough to include a drug conspiracy as a predicate offense, the court nevertheless held that a drug conspiracy offense may not serve as a predicate violation for purposes of a CCE charge because "(a) conspiracy is part of the essential 'continuing series' only if it involves a concert among the kingpin and five subordinates -- in which event it becomes a lesser included offense, and it is double counting to include it among the three predicates." Id. at A4. The court pointed out that "(t)reating a conspiracy -- a crime that always exists when the prosecutor establishes the 'concert' with five or more others -- as a predicate effectively whittles the 'series' down to a minimum of two substantive crimes." Ibid. But the court found no support in the statute or its legislative history for the commonly accepted view that a "series" requires at least three offenses, and accordingly decided to "use Occam's razor to slice away both the conspiracy and the third predicate offense." Id. at A6. In the court's view, "(t)elling a jury that three is the minimum and that a conspiracy counts as one creates a potential for confusion without any possibility of benefit." Ibid. It therefore concluded that "(j)udges should tell juries that a series may be established by two or more substantive drug offenses, and that a conspiracy does not count toward this minimum." Ibid. Because the jury had convicted petitioner of two substantive drug offenses and had found the other essential elements of the offense, the court affirmed his CCE conviction. Id. at A8. ARGUMENT Petitioner contends (Pet. 10-18) that certiorari is warranted because the court of appeals' conclusion that two substantive drug offenses are sufficient to establish a "continuing series of violations" under the CCE statute conflicts with the decisions of other courts of appeals. Petitioner's contention is not persuasive. Although the Seventh Circuit rejected the reasoning of other courts of appeals, its alternative approach does not lead to a different result in this or any other case. Because the decision of the court of appeals is in "harmony in result, although not in exposition, with the * * * other circuits that set a minimum of three violations and allow the included conspiracy to serve as one," Pet. App. A7, further review is not warranted. Petitioner correctly observes that other courts of appeals have held that the "continuing series of violations" element of a CCE offense requires proof of at least three felony narcotics violations. United States v. Chagra, 653 F.2d 26, 27-28 (1st Cir. 1981), cert. denied, 455 U.S. 907 (1982); United States v. Aiello, 864 F.2d 257, 264 (2d Cir. 1988); United States v. Echeverri, 854 F.2d 638, 643 (3d Cir. 1988); United States v. Butler, 885 F.2d 195, 198 (4th Cir. 1989); United States v. Phillips, 664 F.2d 971, 1013 (5th Cir. 1981), cert. denied, 457 U.S. 1136 (1982); United States v. Sinito, 723 F.2d 1250, 1261 (6th Cir. 1983), cert. denied, 469 U.S. 817 (1984); United States v. Maull, 806 F.2d 1340, 1343 (8th Cir. 1986), cert. denied, 480 U.S. 907 (1987); United States v. Valenzuela, 596 F.2d 1361, 1367 (9th Cir.), cert. denied, 444 U.S. 865 (1979); United States v. Apodaca, 843 F.2d 421 (10th Cir.), cert. denied, 488 U.S. 932 (1988); United States v. Head, 755 F.2d 1486, 1490 (11th Cir. 1985). But the other courts of appeals have also held that a drug conspiracy charge may serve as one of the three predicate violations needed to establish a "continuing series of violations." United States v. Middleton, 673 F.2d 31, 33 & n.2 (1st Cir. 1982); United States v. Young, 745 F.2d 733, 748-752 (2d Cir. 1984), cert. denied, 470 U.S. 1084 (1985); United States v. Fernandez, 822 F.2d 382, 384-385 (3d Cir.), cert. denied, 484 U.S. 963 (1987); United States v. Ricks, 802 F.2d 731, 737 (4th Cir.) (en banc), cert. denied, 479 U.S. 1009 (1986); United States v. Schuster, 769 F.2d 337, 345 (6th Cir. 1985), cert. denied, 475 U.S. 1021 (1986); United States v. Hall, 843 F.2d 408, 410-411 (10th Cir. 1988); United States v. Brantley, 733 F.2d 1429, 1436 n.14 (11th Cir. 1984), cert. denied, 470 U.S. 1006 (1985); see United States v. Strickland, 591 F.2d 1112, 1124 (5th Cir.), cert. denied, 444 U.S. 963 (1979) (a conspiracy offense may be "part of the foundation" of a CCE charge). As the court of appeals explained, "(c)ourts that allow the inevitable conspiracy to be used as a predicate offense effectively hold that two is the minimum for a series." Pet. App. A6. /1/ As the court of appeals recognized (Pet. App. A7), the outcome of this case would be no different if the reasoning of the other courts of appeals were substituted for the reasoning of the Seventh Circuit. Petitioner was convicted of conspiracy to distribute marijuana and of two substantive offenses of possession of marijuana with intent to distribute it. Since the other courts of appeals hold that the conspiracy offense may serve as one of the three predicate violations for purposes of a CCE charge, they would affirm petitioner's CCE conviction. It is true that petitioner's CCE conviction could not stand if the "continuing series of violations" element required proof of at least three felony narcotics violations and a drug conspiracy offense could not serve as one of the three predicate violations. But no court of appeals has adopted that view. Because the alternative reasoning of the court of appeals in this case does not lead to different results, there is no occasion for this Court to grant certiorari. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General JOSEPH C. WYDERKO Attorney NOVEMBER 1990 /1/ For that reason, there is no merit in petitioner's contention (Pet. 16-18) that the decision of the court of appeals will encourage forum shopping by the government. The government would have been no better off -- and petitioner no worse off -- in another court of appeals. Similarly, petitioner is incorrect in contending (Pet. 14-16) that the court of appeals' decision deprives CCE defendants of adequate notice of the nature of the charges. Under either approach, the jury must find that the defendant participated in a drug conspiracy and committed two substantive drug offenses in order to convict the defendant of engaging in a continuing criminal enterprise.