U.S. v. Markowski

• Decision Date: 01 November 1985
• Docket Number: No. 84-1874,84-1874
• Citation: 772 F.2d 358
• Parties: 19 Fed. R. Evid. Serv. 281 UNITED STATES of America, Plaintiff-Appellee, v. Ronald MARKOWSKI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 358

772 F.2d 358

19 Fed. R. Evid. Serv. 281

UNITED STATES of America, Plaintiff-Appellee, v. Ronald MARKOWSKI, Defendant-Appellant.

No. 84-1874.

United States Court of Appeals, Seventh Circuit.

Argued May 29, 1985.

Decided Sept. 10, 1985.

Rehearing Denied Nov. 1, 1985.

William T. Grimmer, Asst. U.S. Atty., R. Lawrence Steele, U.S. Atty., Hammond, Ind., for plaintiff-appellee.

Roy E. Black, Black & Furci, Miami, Fla., for defendant-appellant.

Before FLAUM and EASTERBROOK, Circuit Judges, and WEIGEL, Senior District Judge. ^*

EASTERBROOK, Circuit Judge.

Ronald Markowski was the kingpin of a marijuana and cocaine smuggling operation. The district court sentenced him to 45 years' imprisonment without possibility of parole under the Continuing Criminal Enterprise statute, 21 U.S.C. Sec. 848, and fined him $100,000. Other sentences under four other statutes run concurrently with this one, making the CCE count the principal object of our attention.

I

From 1977 through 1982 Markowski led a large group of smugglers who moved marijuana and cocaine from Colombia to Indiana via the Bahamas. The indictment named 41 defendants and many other unindicted conspirators. We affirm the conviction of a defendant who manned an airfield in the Bahamas in United States v. Molt, No. 84-3164, also decided today. More than 49,800 pounds of marijuana and 4,100 pounds of cocaine were imported during the course of the conspiracy. The smuggling operation was run like a business, with investors, secretaries, wholesalers, drivers, pilots, and off-loaders all on the operation's payroll. Markowski used a family-owned trucking business, located in East Chicago, Indiana, as one front for his smuggling operation.

Most of the evidence came from smugglers who cooperated with the prosecution. We narrate it in the light most favorable to the Government. In 1977 Markowski joined with two other smugglers to fly marijuana from Colombia to the United States. The aircraft used in this initial operation was purchased through the family business and used only for smuggling. The plane once crashed in Colombia. Markowski flew to Colombia to rescue his pilots and met a Colombian named Moses who later became his major source of drugs.

Markowski continued his smuggling operation in 1978 with at least two other planes. Witnesses testified to specific importations of 1,000 pounds of marijuana in March 1978 and several other importations during the summer of 1978. Sometime in 1978 Markowski ended his association with his original partners and joined with Frank Brady (still a fugitive), George Chiattello (who pleaded guilty), and Terry Lowe (still to be tried) in a larger venture.

The new operation was more structured. Markowski and Lowe had an attorney form a corporation, Marlowe International Investments. The corporation was used to hide Markowski's interest in an aircraft used for smuggling. One of Markowski's pilots was named president of the corporation. The Marlowe aircraft was used repeatedly between December 1979 and July 1980 to import marijuana from Colombia. The smuggling continued throughout 1981 and 1982. The normal course of any trip was from Colombia to a stopover in the Bahamas for refueling. The next stop was Georgia or Florida, where the marijuana would be unloaded. The marijuana would then be transported to Northern Indiana or Chicago for distribution.

In 1982 Markowski expanded his operation to include cocaine. The evidence showed not only the importation of planes full of cocaine but also two deliveries of cocaine by Markowski to the offices of the family trucking business.

II

The CCE offense has five elements: (1) a predicate offense violating a specified drug law (2) as part of a "continuing series" of drug violations (3) that occurred while the defendant was acting in concert with five or more other people (4) to whom the defendant occupied the position of an organizer or manager and from which series the defendant (5) obtained substantial income or resources. Garrett v. United States, --- U.S. ----, 105 S.Ct. 2407, 2415, 85 L.Ed.2d 764 (1985), describing 21 U.S.C. Sec. 848(b). Section 848 is "designed to reach the 'top brass' in the drug rings...." Garrett, 105 S.Ct. at 2413. See also United States v. Ambrose, 740 F.2d 505 (7th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 3479, 87 L.Ed.2d 614 (1985).

Markowski's principal argument is based on the compound nature of the offense. The prosecution must establish both the predicate offenses and the managerial role. The indictment charged Markowski with two substantive drug offenses, on which he was convicted. Because of the convictions on these predicate offenses, he asserts, the Double Jeopardy Clause of the Fifth Amendment prevents his conviction of the CCE offense, which he characterizes as a "greater" offense arising from the same facts. We accepted this argument in United States v. Jefferson, 714 F.2d 689 (7th Cir.1983). The Supreme Court rejected an identical argument in Garrett. Our holding on this issue in Jefferson therefore is no longer controlling, and the double jeopardy objection to the CCE charge fails.

The fact that Markowski was convicted on only two predicate offenses affords him several additional arguments. The parties agreed at trial that a "continuing series" of violations means three or more substantive violations of the drug laws. ¹ Markowski argues that Sec. 848 requires three convictions, not just three violations. Because the only convictions were on the two counts of distributing cocaine, Markowski says that the Government is one short. The prosecutor responds that "violations," rather than convictions, are enough. The jury was instructed that the overt acts alleged in support of the two conspiracy charges could be used to establish a continuing series of violations.

The language of Sec. 848(b)(2) refers to a "continuing series of violations" of the drug laws but does not define "violation." Several courts have understood "violation" to refer to an offense, whether or not the offense led to conviction. See United States v. Young, 745 F.2d 733, 747 (2d Cir.1984) (collecting cases), cert. denied, --- U.S. ----, 105 S.Ct. 1842, 85 L.Ed.2d 142 (1985). As the Supreme Court emphasized in Garrett, 105 S.Ct. at 2412-15, the CCE statute is not a sentence enhancement provision or an aggravated version of an offense. It is a distinct crime that entails the supervision of a substantial criminal enterprise. What is important is proof that there was indeed a far-flung operation. Whether this has led to other convictions is all but irrelevant to the nature of the CCE offense. This leads us to interpret "violation" in the natural way as an offense, not as a conviction.

The structure of the statute reinforces the conclusion. The penalty provision in Sec. 848(a) provides for additional enhancement in the event of multiple convictions: "any person who engages in a continuing criminal enterprise shall be sentenced to a term of imprisonment which may not be less than 10 years ..., to a fine of not more than $100,000, and to ... forfeiture ...; except that if any person engages in such activity after one or more prior convictions of him under this section, he shall be sentenced to a term of imprisonment which may not be less than 20 years ..." (emphasis added). Subsection (b), in contrast, refers only to "violations." We do not think that Congress used two different words in the same section of the statute to mean the same thing. None of the legislative history, which Garrett discusses in detail, leads to a contrary conclusion.

This interpretation of Sec. 848 draws some support from Sedima, S.P.R.L. v. Imrex Co., --- U.S. ----, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985). The Second Circuit held that the plaintiff in a private civil action under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. Secs. 1961-68, must prove that a defendant has been convicted of the predicate acts establishing a pattern of racketeering activity. 741 F.2d 482 (2d Cir.1984). The Supreme Court disagreed and held that under RICO the plaintiff must show "only to a failure to adhere to legal requirements." 105 S.Ct. at 3281 (citations omitted). RICO and CCE were passed at different times, but they have similar structures. Each is a compound offense in which multiple violations of criminal statutes are essential to a conviction of the new offense. The similar structure of the two laws leads to a conclusion that convictions are not necessary to establish predicate offenses for either statute.

Markowski maintains that even if this is so, the jury was improperly instructed. The court gave a detailed instruction on the elements of the CCE offense. The court told the jury that it first had to find a violation of one of the following drug laws (Sec. 848(b)(1)):

(1) It shall be unlawful for any person knowingly or intentionally to distribute or possess with intent to distribute the controlled substances marijuana or cocaine. Title 21, United States Code, Section 841(a); or

(2) It shall be unlawful to import into the United States from any place outside thereof the controlled substances marijuana or cocaine. Title 21, United States Code, Section 952(a).

The court then told the jury that it had to find three or more violations of these laws. ² In subsequent instructions the court explicated the meaning and elements of the possession and distribution offenses, in the course of describing the substantive cocaine crimes with which Markowski had been charged. But it did not give a similarly full treatment to the importation offense. Markowski therefore says that the instruction was defective--it told the jury that it could use violations of Sec. 952(a) as predicate offenses, but it did not tell the jury that importation is unlawful only if done "intentionally and knowingly." The Government apparently concedes that intent is an element of Sec. 952(a). See, e.g., United States v....