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United States v. Michael Grayson, A/K/A White Bear, United States of America v. Charles Moore, A/K/A Uncle Charlie, United States of America v. Michael Lawless, A/K/A Caveman, United States of America v. Charles McKnight A/K/A McNut United States of America v. Donald Robinson, A/K/A Dino, United States of America v. Michael Giordano, A/K/A Bugsy, United States of America v. John Gavis, A/K/A Wacker John
Citation: 795 F.2d 278Docket: 85-1217
Court: Court of Appeals for the Third Circuit; July 11, 1986; Federal Appellate Court
The case involves multiple appellants, including Michael Grayson and Charles Moore, challenging their convictions under the Racketeer Influenced and Corrupt Organizations Act (RICO) and the Continuing Criminal Enterprise (CCE) statute. The court addresses three main legal questions: 1. Whether a prior conspiracy conviction can serve as a predicate act for subsequent RICO and CCE prosecutions without violating the double jeopardy clause of the Fifth Amendment. 2. Whether the double jeopardy clause prohibits cumulative punishments for both the conspiracy predicate act and the CCE offense. 3. Whether the district court erred in instructing the jury on the definition of 'pattern of racketeering' under RICO. The court concludes that prosecution under RICO and CCE following a prior conspiracy conviction does not violate double jeopardy. However, it finds that consecutive sentences for the CCE offense and its conspiracy predicate offense violate the double jeopardy clause as applied to Grayson, leading to a remand for resentencing. Additionally, the court determines that the district court’s jury instruction regarding the necessity of a connection among predicate offenses to establish a 'pattern of racketeering' was, if erroneous, harmless. Other challenges by the appellants were deemed without merit, resulting in the affirmation of their convictions and sentences, except for Grayson's resentencing. The case stemmed from a federal grand jury indictment against members of the Pagan Motorcycle Club for RICO and drug-related offenses. Eight of the ten defendants indicted, including all seven appellants, were tried by a jury from January 7 to February 12, 1985. On February 15, the jury found all defendants guilty on most counts, with specific not guilty verdicts for Grayson (Count five), McKnight (Count nine), Giordano (Count thirty), and Richter (Count twenty-two). Sentencing occurred on April 2 and May 17, 1985, resulting in individualized prison terms ranging from four to fifteen years. The government presented approximately 43 witnesses, including nine former members of the Pagan Motorcycle Club (PMC), along with over 100 exhibits, such as recorded conversations and documents. The evidence suggested that PMC was involved in the manufacture and distribution of controlled substances, particularly methamphetamine and phencyclidine, with the defendants participating in various activities related to these substances. The case raises double jeopardy issues concerning the use of prior convictions as predicate offenses for RICO and CCE charges. The Double Jeopardy Clause of the Fifth Amendment protects against multiple prosecutions and punishments for the same offense. The Blockburger test determines whether two offenses are the same by checking if each provision necessitates proof of a fact that the other does not, serving as a rule of statutory construction to ascertain legislative intent. The Supreme Court has clarified that the Blockburger rule, which determines whether two offenses are the same, is not definitive when legislative intent is evident in the statute or its history. This determination hinges on legislative intent. Grayson contends that he faced successive prosecutions due to the introduction of his prior convictions during trial. Specifically, he was convicted in 1977 for conspiracy to manufacture methamphetamine and in 1983 for conspiracy to manufacture phencyclidine. These convictions were presented as evidence for the predicate acts in Count two (RICO) and Count three (CCE). Grayson claims this violated his double jeopardy rights. However, RICO's language and legislative history suggest Congress intended to allow separate prosecutions for predicate offenses and subsequent RICO violations. The statute requires at least two acts of racketeering activity to establish a pattern, indicating that a defendant could be convicted of a racketeering act and later charged with a RICO violation based on that conviction. Legislative intent, as stated in the Organized Crime Control Act of 1970, supports the notion of cumulative sentences for RICO offenses and underlying predicate crimes, confirming that a RICO conviction does not provide immunity for the predicate acts. Several appellate courts have consistently interpreted that Congress intended for separate convictions or consecutive sentences for a RICO offense and its underlying predicate offenses. The Ninth Circuit in United States v. Rone asserted that the RICO statutory scheme does not prevent such separations, emphasizing that the racketeering laws serve as an additional tool against racketeering activities that often involve multiple crimes. Thus, the government is not required to choose between prosecuting under RICO or pursuing the predicate offenses, as such a requirement would undermine the purpose of RICO. Courts have ruled that separate prosecutions and cumulative punishments for a RICO offense and predicate offenses are compatible with the double jeopardy clause. The determination of whether a RICO offense is considered the same as its predicate offenses, under the double jeopardy clause, reveals that they are not identical; a RICO offense necessitates proof of a pattern of racketeering activity involving at least two predicate offenses. Additionally, the activities targeted by RICO and those by the predicate offenses differ, allowing for successive prosecutions without violating double jeopardy. Consequently, Grayson’s prior convictions as predicate acts for the RICO charge did not breach the Double Jeopardy Clause. To prove guilt under the continuing criminal enterprise statute (21 U.S.C. Sec. 848), the government must demonstrate: a felony violation of federal narcotics laws, part of a continuing series of violations, in collaboration with five or more persons, where the defendant is an organizer or supervisor, and from which they derive substantial income. The relevant predicate acts involve conspiracy to manufacture methamphetamine and phencyclidine under the conspiracy statute (21 U.S.C. Sec. 846), which addresses attempts or conspiracies to violate drug laws. Grayson argues that his previous convictions under section 846 prevent him from facing another prosecution for a continuing criminal enterprise (CCE) offense. In Garrett v. United States, the Supreme Court addressed whether the government could pursue CCE charges based on prior conduct for which the defendant had already been convicted. Garrett, after pleading guilty to marijuana importation in Washington, faced additional charges in Florida, including conspiracy to import marijuana, conspiracy to possess marijuana with intent to distribute, and engaging in a CCE. The evidence from the Washington conviction was used to support one of the predicate offenses for the CCE charge in Florida. The Eleventh Circuit ruled that the Washington conviction did not bar the Florida CCE prosecution, determining that the offenses were distinct under the double jeopardy clause, which allows for successive prosecutions and cumulative sentences. The Supreme Court, analyzing legislative intent, concluded that Congress intended the CCE provision to be a separate offense from the underlying predicate offenses, confirming that prosecution for a CCE offense following a conviction for a predicate offense does not violate the Double Jeopardy Clause. The Court emphasized that the CCE offense, which included acts occurring after the Washington indictment, was not yet complete at that time, allowing the previous conviction to be utilized as evidence for the Florida CCE charge. The rationale applied to substantive predicate offenses also extends to predicate conspiracy offenses, with section 848(b)(1) of Title 21 categorizing felony conspiracies under 21 U.S.C. section 846 as qualifying predicate acts. The Court's discussion in Garrett regarding successive prosecutions focuses on the term "predicate offenses" without restricting its application to substantive predicate offenses. In examining cumulative punishment, the Court referenced Jeffers v. United States, noting a distinction between conspiracies and substantive predicate offenses. The Jeffers case, involving successive prosecutions for conspiracy and continuing criminal enterprise (CCE), did not resolve the issue of whether successive prosecutions were appropriate, as the defendant's objection to joint trials negated any claims against consecutive trials. Additionally, in Jeffers, both offenses covered the same time frame and used overlapping evidence, unlike the current case where Grayson's CCE charge involved numerous offenses distinct from prior conspiracy convictions. Grayson faced a CCE charge covering March 1977 to November 1983, with earlier conspiracy convictions occurring within narrower timeframes. The indictment against Grayson included 26 predicate acts for the RICO charge, many occurring after previous indictments. Evidence indicated Grayson's continued illegal drug activity through July 1983, postdating the Maryland indictment. Thus, under the principles established in Garrett, admitting Grayson's prior conspiracy convictions as predicate acts for the CCE charge did not breach the Double Jeopardy Clause. The Court concluded that RICO and CCE are intended as separate offenses and that prosecuting both after a conspiracy conviction does not violate double jeopardy. Regarding sentencing, Grayson received a ten-year sentence for the CCE and its predicate offenses, to run after his Maryland sentence, and a consecutive five-year sentence for RICO conspiracy, with probation imposed for the substantive RICO charge. In United States v. Phillips, the Fifth Circuit determined that RICO counts are not lesser included offenses of a Continuing Criminal Enterprise (CCE) charge for double jeopardy purposes. The court emphasized that RICO counts require proof of elements, such as the existence of an enterprise affecting interstate commerce, which are not required under CCE charges. This distinction justifies consecutive punishments for RICO and CCE offenses without violating the Fifth Amendment's double jeopardy clause. The court referenced Congress's intent to allow cumulative sentences for RICO and its underlying predicate offenses. The excerpt also notes that prior to a Supreme Court ruling in Garrett v. United States, there was a split among appellate courts regarding whether consecutive sentences for CCE and its predicate offenses were permissible under the Double Jeopardy Clause. The Supreme Court clarified that cumulative punishments are allowed for CCE and substantive predicate offenses but did not extend this reasoning to conspiracy charges, maintaining that cumulative punishment for conspiracy and CCE is impermissible based on the precedent set in Jeffers. Consequently, Grayson cannot receive sentences for both the CCE and conspiracy convictions. The document indicates that the appropriate remedial action is to consider resentencing. Citing United States v. Busic, it states that a district court has the discretion to resentence a defendant de novo, potentially imposing a more severe sentence, while clarifying that vacating Grayson's convictions is unnecessary since only the cumulation of the sentences is unlawful. Grayson's sentence on all counts is to be vacated, and consecutive sentences should be imposed on the non-Continuing Criminal Enterprise (CCE) counts if deemed appropriate in relation to his District of Maryland sentence. The district court cannot impose a general sentence on the CCE count alongside the Maryland conspiracy conviction, nor can it vacate the Maryland conviction or allow the CCE sentence to run concurrently with it. Citing *Ball v. United States*, the court underscores that if Congress did not intend for cumulative punishment, the district court must vacate the underlying convictions or sentences instead of ordering concurrent sentences. The case is remanded with instructions for the district court to vacate Grayson’s sentence and impose appropriate sentences on Counts one, two, four, six, and seven. Defendant Giordano contests the jury instructions, asserting it was reversible error for the court to not require a "connection" among predicate acts for the RICO offense under 18 U.S.C. § 1962(c) in Count two. The district judge defined a "pattern of racketeering activity" as two or more acts occurring within ten years, to which Giordano objected, requesting clarification on the need for a connection between the acts. The court's standard of review for this issue is plenary, involving statutory construction and legal interpretation. Under § 1962(c), conducting affairs through a pattern of racketeering is unlawful, and "racketeering activity" encompasses various specified illegal acts. A "pattern of racketeering activity" requires at least two acts, with one occurring after the chapter's effective date and the last within ten years of a prior act, excluding imprisonment periods. Courts have previously varied in their interpretations of "pattern" for RICO, with the Supreme Court in *Sedima, S.P.R.L. v. Imrex Co. Inc.* clarifying that a "pattern" necessitates both continuity and relationship among the acts. The Court clarified that RICO targets ongoing criminal conduct rather than isolated offenses, emphasizing that a 'pattern of racketeering activity' requires at least two acts, which must be interrelated and not sporadic. Legislative history and Senate Reports indicate that the continuation of activity is vital for establishing a pattern. The Court assumed, without formally deciding, that the predicate acts supporting Giordano's RICO conviction were interrelated, thus validating the conviction despite a challenged jury instruction. The error in the instruction did not infringe upon any constitutional rights, allowing the Court to apply a "highly probable" standard to assess harmlessness, concluding that the error did not prejudice Giordano. The indictment against Giordano included seven predicate acts related to drug offenses committed with members of the Pagan Motorcycle Club, reinforcing the continuity of his criminal involvement. Consequently, the Court affirmed all appellants' convictions and sentences, except for Michael Grayson, whose case was remanded for resentencing on non-CCE counts. Contentions from appellants’ briefs are rejected as lacking merit. All appellants support each other’s applicable arguments. Michael Grayson (No. 85-1214) claims insufficient evidence for his conspiracy conviction under RICO and for substantive RICO violations, as well as for a violation of 21 U.S.C. § 848. He also argues the District Court improperly allowed government witnesses to interpret conversations. John Gavis (No. 85-1391) contends he was denied due process when a critical jury-requested testimony was not read back and that the Trial Court wrongly denied his severance motion. Charles Moore (No. 85-1217) questions the Trial Court's refusal to sever his trial from co-defendants and the lack of jury instruction regarding the continuity of alleged overt acts. Michael Lawless (No. 85-1218) argues against the denial of his severance motion, citing that evidence primarily targeted other defendants, and objects to the presence of metal detectors, which he believes compromised the fairness of the trial. Charles McKnight (No. 85-1222) asserts the Trial Court erred by not allowing expert testimony on the effects of high drug use on witness reliability and by admitting a prior conviction as a predicate offense not included in the indictment. Donald Robinson (No. 85-1255) questions the refusal to present an entrapment defense to the jury. Michael Giordano (No. 85-1314) claims a prejudicial time variance necessitates the reversal of Count 31 and argues that evidence was insufficient to establish a "pattern" of racketeering activity for Count 2, as four of six predicate offenses were not tied to the enterprise. Counts one and two of the indictment charged all defendants with substantive RICO violations and conspiracy under RICO. Grayson faced additional charges for engaging in a continuing criminal enterprise and possession with intent to distribute methamphetamine. Counts four through twenty-nine outline a series of charges against multiple defendants related to drug offenses, particularly involving methamphetamine and phencyclidine (PCP). Key charges include: - Charles McKnight: Attempted possession with intent to distribute methamphetamine; engaging in a continuing criminal enterprise (CCE); possession with intent to distribute methamphetamine; and manufacture of PCP. - Donald Robinson: Attempted possession with intent to distribute methamphetamine. - Michael Lawless: Manufacture of PCP; possession of piperidine with intent to manufacture PCP. - Michael Giordano: Attempted manufacture of PCP; possession with intent to distribute PCP; distribution of methamphetamine; and distribution of PCP. - Charles Moore: Possession of piperidine with intent to manufacture PCP. - John Gavis: Manufacture of PCP; possession of piperidine with intent to manufacture PCP. Two defendants entered plea agreements, with one serving as a witness. Richard Richter, a fugitive at sentencing, was not sentenced and is excluded from appeals. To secure a conviction under the Racketeer Influenced and Corrupt Organizations Act (RICO), evidence must demonstrate the defendant participated in an enterprise's affairs through a pattern of racketeering activity involving at least two predicate crimes. For CCE convictions, the prosecution must show the defendant engaged in three or more federal drug violations and acted in concert with five or more individuals for substantial income. Cumulative punishment issues arise from prior convictions, with distinctions made between successive prosecutions and cumulative punishments under double jeopardy analysis. The Supreme Court's ruling in Garrett allows for cumulative punishment for CCE and substantive predicate offenses, overriding previous precedents. The maximum penalties for the convictions include a 20-year sentence and a $25,000 fine for RICO conspiracy (Count One) and various penalties for other counts under relevant statutes. The legal excerpt outlines various charges and potential penalties under specific sections of the United States Code related to drug offenses. Key points include: 1. **RICO Penalty**: A 20-year sentence and a $25,000 fine are specified under RICO. 2. **Continuing Criminal Enterprise (CCE)**: Under 21 U.S.C. Sec. 848, there is a minimum sentence of 10 years, with the possibility of life imprisonment without parole, plus a $100,000 fine. 3. **Possession with Intent to Distribute**: - Under 21 U.S.C. Sec. 841(a)(1), the penalty includes a 5-year sentence and a $15,000 fine for possession with intent to distribute methamphetamine. - This also applies to Counts four, six, and seven. 4. **Attempts to Distribute**: Under 21 U.S.C. Sec. 846, the penalties for attempts to possess with intent to distribute methamphetamine include a 5-year sentence and a $15,000 fine. 5. **Pre-1984 Offenses**: Counts four, six, and seven are noted as having occurred before October 12, 1984, thus not subject to increased penalties from the Comprehensive Crime Control Act of 1984. 6. **Prior Felony Convictions**: It is mentioned that Grayson, having a prior felony conviction, could have faced enhanced sentencing under 21 U.S.C. Sec. 841(b)(1)(B). However, the government did not file the necessary information regarding previous convictions before trial, limiting the maximum penalty for Counts four, six, and seven to five years and a $15,000 fine. 7. **Jury Submission Issue**: A predicate act mentioned in the document was not submitted to the jury due to an error in identifying the drug as phencyclidine instead of methamphetamine. These points summarize the legal implications and specific circumstances surrounding the charges and potential penalties faced in this case.