U.S. v. Kramer
| Citation | 955 F.2d 479 |
| Decision Date | 14 April 1992 |
| Docket Number | Nos. 88-3444,s. 88-3444 |
| Parties | 34 Fed. R. Evid. Serv. 1365 UNITED STATES of America, Plaintiff-Appellee, v. Benjamin Barry KRAMER, Randy Thomas Lanier, Eugene Albert Fischer, and Kay Dee Bell, Jr., Defendants-Appellants. to 88-3446, 89-1025 and 89-2752. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Robert T. Coleman, Asst. U.S. Atty. (argued), Crim. Div., Fairview Heights, Ill., Michael C. Carr, Asst. U.S. Atty. (argued), Benton, Ill., for U.S.
Mary C. Bonner, Fort Lauderdale, Fla., Richard O. Hart, Hart & Hart, Benton, Ill., Albert J. Krieger (argued), Susan W. VanDusen, Miami, Fla., Robert A. Drew, Marion, Ill., J. David Bogenschutz, Fort Lauderdale, Fla., for Benjamin B. Kramer.
Nathan P. Diamond (argued), Miami, Fla., Robert I. Kalina (argued), Edward M. Chikofsky (of counsel), New York City, for Eugene A. Fischer.
Michael Stepanian, Joseph J. Wiseman, San Francisco, Cal., Burton H. Shostak (argued), D.J. Kerns, Moline, Ottsen, Mauze, Leggat & Shostak, St. Louis, Mo., for Kay D. Bell, Jr.
Jack Carey, Belleville, Ill., Joseph Beeler, Miami, Fla., Robert W. Ritchie (argued), W. Thomas Dillard, David M. Eldridge, Ritchie, Fels & Dillard, Knoxville, Tenn., for Randy T. Lanier.
Before CUMMINGS, CUDAHY and KANNE, Circuit Judges.
Appellant Randy Thomas Lanier was a rising star on the auto-racing circuit in the early 1980's; indeed, in 1985, he was the rookie of the year at the Indianapolis 500. Lanier apparently did not regard auto racing as a full-time job. Together with appellants Benjamin Barry Kramer, and Eugene Albert Fischer, he directed a vast enterprise which imported several hundred thousand pounds of marijuana into the United States in the 1980's. Appellant Kay Dee Bell, Jr. assisted the enterprise in importing two loads of marijuana.
A jury found Lanier, Kramer, Fischer and Bell guilty of conspiring to distribute marijuana in violation of 21 U.S.C. §§ 846 and 841(a)(1). The jury also found that Lanier, Kramer and Fischer had participated as principal administrators, organizers, or leaders of a continuing criminal enterprise ("CCE") in violation of 21 U.S.C. § 848. Finally, the jury found Lanier guilty of conspiring to defraud the United States under 18 U.S.C. § 371 by impeding the United States in its assessment and collection of revenue.
As required by § 848(b), Lanier, Kramer and Fischer were each sentenced to a mandatory term of life imprisonment without possibility of parole. Pursuant to §§ 846 and 841(a)(1), Lanier and Kramer were sentenced concurrently to forty years imprisonment, Fischer was sentenced concurrently to thirty-five years imprisonment, and Bell was sentenced to twenty-five years imprisonment. Lanier was also sentenced to serve five years for the violation of § 371, to run consecutively to his sentence under §§ 846 and 841(a)(1). In addition, forfeiture judgments were entered against Lanier and Kramer in the amount of $60,000,000 each and against Fischer in the amount of $30,000,000. Appellants raise numerous challenges to their convictions. We find their arguments unpersuasive and affirm in all respects. 1
I.
In 1982, Lanier and Kramer formed a partnership which purchased marijuana from sources in Colombia and imported it to the United States through several locations. Kramer arranged to have marijuana brought from Colombia to Florida on his boat, the "Ursa Major," while Lanier provided the initial financing for the purchase of the marijuana and distributed it to his customers upon arrival. The enterprise established by Lanier and Kramer imported two boatloads of marijuana on the "Ursa Major" to Melbourne Beach, Florida from Colombia.
The partnership's first transaction took place in April, 1982 when Lanier and Kramer arranged to bring 15,000 pounds of marijuana from Colombia to Melbourne Beach, Florida. Kramer and Lanier arranged for the load to be picked up in Colombia, unloaded in Melbourne Beach, and then distributed. Lanier purchased boats to ferry the marijuana from the "Ursa Major" to the beach where Kramer coordinated the unloading of the marijuana into waiting vans. A second load of 20,000 pounds of marijuana was imported in the same manner in August, 1982. Some of the marijuana from this load was purchased by a co-conspirator, Conrad Ingold, and was delivered by him to the Staunton, Illinois area.
Fischer joined Lanier and Kramer in orchestrating the next five transactions, in which a tugload and four bargeloads of marijuana, were brought into the United States. In the third transaction, which took place in the spring of 1983, Lanier, Kramer and Fischer imported 30,000 pounds of marijuana into Bridgeport, Connecticut and arranged its distribution. In the fall of 1983, they brought a bargeload of approximately 14,000 pounds of marijuana to New York. Again, Lanier and Kramer set up its importation and distribution. Some of the marijuana from that load was transported to the St. Louis area for distribution.
In the fifth transaction, which took place in 1984, Lanier, Kramer and Fischer brought a bargeload of 147,000 pounds of marijuana to San Francisco. Bell, who owned Harbor Sand and Gravel Yard, located in San Francisco, assisted the enterprise in unloading the barge and transporting its contents to customers. Bell's tugboat brought the barge, upon its arrival in San Francisco, to his Sand and Gravel Yard where it was unloaded. Bell also helped Lanier and Kramer arrange the transportation of the marijuana from the Yard. Some of the marijuana imported in the San Francisco load was delivered by customers of Lanier and Kramer to Millstadt, Illinois. Over $50 million was received from the sale of that load of marijuana.
The sixth transaction took place in the spring of 1985. Lanier, Kramer and Fischer imported a bargeload of approximately 152,000 pounds of marijuana to New Orleans. Kramer was responsible for the purchase of the marijuana in Colombia while Fischer rented dock space in New Orleans and arranged to bring the barge to the dock. Lanier directed the unloading of the barge. Customers of the enterprise shipped some of the marijuana in that load to Millstadt, Illinois.
The seventh transaction occurred in November 1986. The appellants imported a bargeload of approximately 130,000 pounds of marijuana to San Francisco. Kramer sent an agent to Colombia to acquire the marijuana. When the load arrived, Bell arranged for the cover load of lumber to be unloaded from the barge. Fischer provided workers who removed the marijuana from the secret compartments of the barge and placed it in containers which were loaded onto flatbed trailers at Bell's Sand and Gravel Yard. Bell also assisted Fischer in loading the containers onto the flatbed trailers. Lanier and Kramer were principally responsible for transporting the marijuana from the Sand and Gravel yard. The enterprise collected $34,795,000 from this load. Kramer received $12,500,000, while Fischer split $10,253,000 with George Brock. 2 Lanier received the balance of the proceeds.
II.
Lanier, Kramer and Fischer raise two objections to their § 848 convictions based on the premise that § 848(b) is a substantive offense. They argue that their § 848 convictions violated the constitutional prohibition on ex post facto laws. 3 They also argue that their constitutional rights to be tried in the district in which the § 848 offense was committed were violated. As we shall explain, both of these objections fail.
First, we consider the appellants' ex post facto objection to their convictions, under § 848, for being the principal administrators of a CCE. Specifically, the appellants object to the district court's instructions on certain elements of § 848.
There are several elements necessary for a conviction under § 848, and other factors which require the application of § 848(b). First, the government must prove that the defendant engaged in a CCE. See § 848(d). Under § 848(d) a person is engaged in a CCE if:
(1) he violates any provision of this subchapter or subchapter II 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 II 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.
§ 848(d). Section 848(a) sets forth the penalties for some of the persons who are found to have engaged in a continuing criminal enterprise under § 848(d). Section 848(a) provides that "[a]ny person who engages in a continuing criminal enterprise shall be sentenced to a term of imprisonment which may not be less than 10 years and which may be up to life imprisonment, ..." Section 848(b), which became effective on October 27, 1986, is titled "Conditions for life imprisonment for engaging in continuing criminal enterprise." It provides for a mandatory life sentence for a person engaging in a CCE if:
(1) such person is the principal administrator, organizer, or leader of the enterprise or is one of several such principal administrators, organizers, or leaders; and (2)(A) the violation referred to in subsection (d)(1) of this section involved at least 300 times the quantity of a substance described in subsection 841(b)(1)(B) of this title, or (B) the enterprise, or any other enterprise in which the defendant was the principal or one of several principal administrators, organizers, or leaders, received $10 million in gross receipts during any twelve month period of its existence for the manufacture, importation, or distribution of a substance described in section 841(b)(1)(B) of this title.
On the application of § 848(b) the...
To continue reading
Request your trial
-
State v. Bartlett
...approved in Harmelin, most commonly in drug cases. See United States v. Lowden, 955 F.2d 128 (1st Cir.1992); United States v. Kramer, 955 F.2d 479, 488 (7th Cir.1992); United States v. Knapp, 955 F.2d 566, 570 (8th Cir.1992) (defendant's claim that sentence for participation in drug conspir......
-
U.S.A. v. Smith et al
...question, although we had indicated that sec. 848(b) "appear[ed] to be a sentencing enhancement provision" in United States v. Kramer, 955 F.2d 479, 484 n.4 (7th Cir. 1992). After the trial, we decided in United States v. Hardin, 209 F.3d 652 (7th Cir. 2000), that it was a sentencing factor......
-
U.S. v. Crowder
...1261, 117 L.Ed.2d 491, and cert. dismissed, 506 U.S. 19, 113 S.Ct. 486, 121 L.Ed.2d 324 (1992). But see United States v. Kramer, 955 F.2d 479, 492-93 (7th Cir.) (Cudahy, J., concurring) (expressing view that law of circuit is mistaken), cert. denied, 506 U.S. 998, 113 S.Ct. 595, 121 L.Ed.2d......
-
Khalifa v. State
...after, the effective date of [the statute]." United States v. Harris, 79 F.3d 223, 229 (2d Cir.1996); see also United States v. Kramer, 955 F.2d 479, 485 (7th Cir.1992) ("It is well settled that the ex post facto clause is not applicable to offenses which began before the effective date of ......